S.L. Peeran, Member (J) JUDGMENT
S.L Peeran, Member (J)
1. This a Revenue appeal against part of the Order-in-Original No. 57/96 dated 9.12.96 by which the Commissioner of Central Excises Chennai has dropped part of the proceedings based on entries made in the parcel note book. The Commissioner has noted in paras 18 to 20 of his order that the quantity of clearances without payment of duty has been arrived at by totalling the quantities shown as 'packed' in the parcel note book. However, neither the total quantities packed during the period have been arrived at nor these quantities compared with the RG-1 production record. He has noted that only those entries in the note book which did not tally with the invoices have been taken into account for calculating the demand. He has noted that there are instances where clearances had been made under proper invoices and these have not been deleted. Therefore, he held that it is not conclusively proved that entries in the parcel note book show actual quantities of goods manufactured. He also noted that there is no evidence available on record to establish that excess raw material was procured, additional man-power employed and the goods where actually transported; that some of the customers of respondent company stated that they had received snuff as recorded in the note book but he, however, noted that these statements had not been corroborated by any direct evidence. He also noted that details of payment made by the customers were also not available on record. Hence, for lack of evidence and as the charge had not been conclusively established pertaining to the manufacture or clearance made clandestinely, he dropped the demand in so far as the charge pertaining to clearances said to have been made as noted in the parcel note book.
2. Revenue is challenging this portion of the order and is contending that said "Parcel Note Book" contained details like destination, packing details, total quantity, number of bundles and date. The Accountant of the respondent company, viz. Shri Kunjaram had admitted that he maintained the said note book; that the parcel note book reflects the actual despatches to various customers; that the parcel note book contains particulars of accounted as well as unaccounted removals; that on certain occasions they had despatched snuff without payment of duty; that while the invoices were prepared for lesser quantity, they had in reality despatched larger quantity; that on certain occasions, consignments of unaccounted snuff were despatched through hired vehicles; that on certain occasions parcels were carried by hand and that the sale proceeds in respect of unaccounted despatches were received in cash by the partners. Therefore, it is pleaded that it appeared that entries made in the note book captioned 'parcel note book' are nothing but the actual despatches made by the respondents and not 'packing schedule' as contended by them. It is stated that the entries in the parcel note book are to be taken as details of the quantity despatched only and hence the demands raised are required to be confirmed.
3. Heard Ld, DR Shri A. Jayachandran and Ld. Counsel Shri S. Venkatachalam.
4. La. DR took us through the records and heavily relied on the statement given by the respondent's accountant and others and pleaded that the details recorded in the parcel note book were corroborated and it is sufficient to uphold the charge of clandestine removal.
5. On the other hand, Ld. Counsel points out that the despatches were made to 65 customers. The department had examined only 5 customers. Only two of them had turned up for cross-examination and had clearly stated that they had received the goods under invoices. Likewise, two of the customers, who had initially stated that they had received the goods, later resiled and also pleaded that those receipt of goods were against invoic........