Customs, Excise and Gold Tribunal - Mumbai
Pilot Industries, Shri Kushalchand L. ... vs Commissioner Of Central Excise on 29 April, 2004
Equivalent citations: 2004(173)ELT402(TRI-MUMBAI)
ORDER K.D. Mankar, Member (T)
1. M/s. Pilot Industries (main appellant) are the manufacturer of various plastic moulded parts of mixers and grinders, on which they are required to pay excise duly. However, in terms of provision of the exemption available to small-scale industries, they were clearing the said goods without payment of Central Excise duty. On the basis of enquires made by the departmental authorities it was alleged that the appellants indulged in clandestine activity of clearance of the said excisable goods surreptionsly and the said production and clearance was not reflected by them in their Central Excise records. It was alleged that the appellants maintained the record of their clandestine clearance in the kachha records, which was recovered during the search of factory premises. Based on the turnover as projected from the details figuring in kachha records and other seized documents the duty demand of Rs. 47,593/- was confirmed in respect of alleged past clearance. Besides demand of Rs. 1,039.50 was confirmed on seized goods. Penalties and redemption fines were also imposed. The appeal against the adjudication order was negatived by the Commissioner (Appeals). Hence the instant appeal to the Tribunal.
2. Heard both sides.
3. I note that, the total value of clearances of excisable goods cleared during the period from 1.4.97 to 15.1.98 has been arrived at Rs. 45,86,449/-. The same is comprising of Four Parts:-
Part I - Rs. 14,72,150/- Accounted Sales (Not in dispute) Part II - Rs. 10,42,699/- Kachha Chits/Work papers (seized documents) contested. Part III - Rs. 01,08,000/-Rough book (Duplicate book) contested.
Part IV - Rs. 19,63,600/- Clearance as per stock position of 31.12.97 reflected in a piece of paper. (seized document) contested.
4. The learned counsel for the appellants pleaded that the entries figuring in the "Kachha Slips" and Rough Book (part-II and Part-III) can not be considered to be the entries of clandestine removal. The appellants had explained to the officers that, these entries relate to the trade enquires received from the various buyers. The departmental authorities disbelieve this story and claim that, the said entries actually relate to the sale transactions, not reflected in the sales extracted at Part-I in the preceding paragraph. The problem before me is that none of the parties are able to corroborate their respective versions. In my view, it should have been possible for the appellants to refer to a specific entry in the Part-II and correlate the same with the actual despatches reflected in part-I since I notice that, quite a number of parties are common in both the parts (also in Part-III). The departmental authorities on the other hand had thrown up their hands in despair saying that, for want of full particulars of the party's name and addresses, they are not able to seek confirmation regarding the authenticity of transaction. In the order-in-original the adjudicating authority, however, observes that since the trade proceeds on trust, incorporation of such sketchy details of the customers is sufficient for the appellants and therefore he held that the figures reflected in Part-II & III are actual sales.
5. In this context I would like to observe that, when the two parties are reading a piece of evidence, in diametrically opposite manners, then without an independent corroboration to justify the respective interpretation, it is not possible to support the claim of either the department or the appellants. However, it must be remembered that, a greater burden rests on the department to prove its case in a positive manner with some degree of credible evidence. The sole evidence in the form of Kachha Slips in this case is not adequate to support the allegation, when the said documents do not conclusively suggest the sale, and the probability of the said record being the record of trade enquiries can not altogether be ruled out.
6. As already noted, there are, common names in both part-I as well as parts-II & III. Therefore the departmental authorities, could have identified the parties named in part-II from the records in part-I and conducted further investigations to ascertain as to whether or not, the details recorded in parts-II & III relate to any corresponding purchases made by them. It is nobody's case that the parties whose names figure in Part-I, with the same sketchy details as reflected in Parts-II & III are not traceable since the sales to the said parties is an admitted fact.
7. Hence in the absence of any corroboration, I hold that, the available evidence on record is insufficient to conclude that, the details figuring in parts-II & III relate to clandestine clearance.
8. As regards part-IV is concerned, the said piece of paper on which certain stock is recorded, as if the same is stock on 31.12.97 cannot be treated as the stock as it actually existed in the factory on 31.12.97. The author of the paper is not identified nor correlation of any entries relating to any particular item has been attempted by the investigation with any other record of the factory so as to establish its authenticity. Therefore, I hold that even this piece of evidence is not acceptable to support the allegation. The seizure, confiscation, and penalties imposed are therefore not sustainable and are therefore set aside.
9. Accordingly I allow all the appeals in Toto with consequential relief in accordance with law and set aside the impugned orders Passed by the lower authorities.
(Announced on 29/4/2004)