Custom, Excise & Service Tax Tribunal
Cce, Ludhiana vs Sh. Ghansham Bassi, Director, Moon ... on 6 January, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I APPEAL NOs. E/3155-3156/2007 [Arising out of Order-in-Appeal Nos. 366-367/CE/CHD/LDH/2007 dated 12.09.2007 passed by the Commissioner of Central Excise (Appeals), Chandigarh.] Date of hearing/decision: 06.01.2017 For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) =======================================================
CCE, Ludhiana.
:
Appellant(s) VS Sh. Ghansham Bassi, Director, Moon Light Auto (P) Ltd. :
Respondent(s) ======================================================= Appearance:
Sh. Harvinder Singh, AR for the Appellant(s) Sh. Sudeep Singh, Advocate for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) FINAL ORDER NO. 60058-60059/2017 PER: ASHOK JINDAL Revenue has filed these appeals against the impugned orders wherein the ld. Commissioner (Appeals) drop the charge of clandestinal removal goods against the respondent.
2. The brief facts of the case are that the case of Revenue is that during the physical verification of the stock of raw material on 8.12.2005 there was a shortage of C.R. Sheets/H.R. Sheets and scrap. While scrutinizing data of the one of the computer installed in the accounts branch/ parallel record with regards to production was detected, which was compared to the figure RG-1 Register reflected discrepancy in receipt of various finished goods. On these basis, a show cause notice were issued to the both the respondents to demand duty along with interest and imposed penalty on both the respondents.
3. The matter was adjudicated, the demand of duty was confirmed along with interest against the main respondent and penalty was also imposed on both the respondents. The said order of the Ld. Commissioner (Appeals) was challenged before this Tribunal and this Tribunal affirmed the order of Ld. Commissioner (Appeals). The order of this Tribunal was challenged by the Revenue before Honble High Court and Honble High Court has remanded matter back to this Tribunal holding that the matter be decided afresh after granting the opportunity to both the parties. Hence, these appeals.
4. The Ld. AR submits that the verification of stock was conducted with the active participation of two employees and the Director of the Company, who did not raise any objection for the method of physical stock verification and found satisfactorily. The Director himself has admitted the manner and method of physical verification and statement of Director was never retracted. The computerize record has alleged by the respondent that they have generated later on but on 09.12.2005 during the course of checking the data installed in the office being operated by Sh. Vijay Kumar, Accounts Assistant and the prints out of the same was taken out in the presence of Sh. Vijay Kumar. Therefore, the prints out cannot be denied.
5. On the other hand Ld. Counsel for the respondent submits that the goods were not physically verified, the verification report has been made simply on eye-estimation. In fact, if a physical verification could have been done that would not have been completed in a single day. He further submitted that there was no shortage of bought out items which are required to manufacture the finished goods. Out of the raw material found that short the finished goods cannot be manufactured. Therefore, the demand is not sustainable. He further submitted that the computer prints which have been relied by the Revenue are not admissible, as no procedure prescribed under Section 36(B) of the Central Excise Act, 1944 has been followed. Therefore, the computer prints out are not reliable documents.
6. Heard the parties and considered the submissions.
7. On careful consideration of the argument advance and paper place before me, a query was raised to the Ld. AR whether any panchnama has been drawn or not to certify the physical verification of the goods/inputs. It was answered by the Ld. AR that no such panchnama was drawn while physical verification of the stock. As panchnama is the prime document to record the stock verification and the same has not been drawn in the case. Therefore, it is doubted that whether any physical verification of stock done or not. In the absence of the panchnama, adverse inference cannot be drawn against the respondent. Further I find that the computer prints have been relied upon to alleged clandestinal removal of goods but no procedure prescribed under Rule 36 (B) Central Excise Act, 1944 has been followed. Therefore, the computer prints out are not reliable documents.
8. With these observations, I hold that the charge of the clandestinal removal of goods is not sustainable against the respondents. Accordingly I do not find any infirmity with the impugned order, the same is upheld and the appeals filed by the Revenue are dismissed.
(Dictated and pronounced in the open court) Ashok Jindal Member (Judicial) NS 4 Appeal Nos. E/3155-3156/2007- CHD