Customs, Excise and Gold Tribunal - Ahmedabad
Kalyan Glaze Tiles And Shri M.N. Ughreja vs Cce on 20 November, 2007
Equivalent citations: 2008(124)ECC133, 2008(150)ECR133(TRI.-AHMEDABAD), 2008(222)ELT417(TRI-AHMD)
ORDER Archana Wadhwa, Member (J)
1. The appellants are engaged in the manufacture of Ceramic Glazed Tiles falling under heading 6906.10 of the 1st Schedule of the CETA, 1985. As per the facts on record, the office premises of one M/s Jalaram Transport Rajkot were put to search on 28.1.98 and various goods loading slip books were recovered. Proprietor of the transport company, in his statement dt. 2.2.98 deposed that the trucks mentioned in the loading slips have been sent to the appellant on respective dates and they have received the commission from the owner of the trucks. Accordingly, the factory premises of the appellants were put to search on 14.3.98 and comparison of loading slips and invoices issued by the appellant revealed that though the duty was paid in respect of six transport loading slips, three loading slips were not found to be covered by any Central Excise invoices. The statement of Shri Mukeshbhai N. Ughareja, Partner was recorded wherein he offered to pay the duty in respect of the goods covered by three loading slips. On the above basis, the proceedings were initiated against the appellant for confirmation of demand of Rs. 33,066/- and for imposition of penalty. The original Adjudicating Authority confirmed the demand as proposed in the notice and also imposed personal penalty of identical amount on the manufacturing unit along with imposition of personal penalty of Rs. 10,000/- on the partner. Appeals against the above order did not succeed before the Commissioner (Appeals). Hence, the present appeal. We have heard Shri C. Dethariya, learned advocate appearing for the appellant and Shri D.S. Negi, appearing for the Revenue.
2. The appellants' main contention is that the name given in the loading slips does not tally with their names in as much as in most of the slips had mentioned as "Kalyan Ceramics" and "Kalyan Tiles", whereas the name of their unit is "Kalyan Glazed Tiles". Further, it has been contended that the entire case of Revenue is based on the loading slips recovered from the transporter's premises and the statement of the partner. As regards he recovery of the slips, it is seen that the transporter has not been made a party to the proceedings. He has placed an affidavit on record during the course of adjudication, to the effect that the chits are prepared to keep notes of requirements given by the clients over phone and it is not always that the trucks are booked and actually used by such persons. The transportation does not get executed due to various practical problems. It has further been mentioned in the affidavit that the trucks booked for the minimum quantity due to freight reason which does not mean that the quantity mentioned in chit is also the loaded quantity. We find that the said affidavit of the transporter has not been considered by the Commissioner (Appeals). Admittedly, the party has number of group companies under the main name of "Kalyan", manufacturing the identical goods and in absence of correct co-relation of the company with the appellant, such transport chits cannot be made the basis for arriving at finding of clandestine removal, especially in the light of the affidavit given by the transporter.
3. It is not understood as to when the names of the buyers was also mentioned in the said transport slip, what prevented Revenue officers to take the investigation up to the buyers' end and place on record more evidences to substantiate the allegation of clandestine removal. Since these have not been done by Revenue, the benefit of doubt has to be extended to the appellant in the absence of any corroborative evidence and on the face of the doubtful nature of transport slip. It is well established that the charges of clandestine removal cannot be confirmed on the basis of surmises and conjectures and require positive and tangible evidence. In the absence of such evidence in the present case, we find no merits in the findings of the authorities below. We may note here that the Revenue's reliance on the statement of the partner is also not justified in as much as apart from the fact that there is no corroboration to the said statement, it is seen that the partner has deposed in the said statement that anything showing clandestine removal if found, they will pay the duty. The language used does not inspire confidence to the effect that the partner has admitted the clandestine removal.
4. In view of the foregoing discussion, we set aside the impugned order and allow both the appeal with consequential relief to the appellants.
(Pronounced in Court on 20/11/07)