Customs, Excise and Gold Tribunal - CalcuttaUtkal Galvanizers Ltd. vs Commissioner Of C. Ex. And Cus. on 2 July, 2003Equivalent citations: 2003(158)ELT42(TRI-KOLKATA)ORDER
 

Archana Wadhwa, Member (J)1. After dispensing with the condition of pre-deposit of duty of Rs. 12,05,727.00 (Rupees twelve lakh five thousand seven hundred and twenty-seven) and penalty of Rs. 3.00 lakh (Rupees three lakh) imposed upon the first applicant/appellant-company, M/s. Utkal Galvanizers Ltd. and penalty of Rs. 50,000.00 (Rupees fifty thousand) and Rs. 10,000.00 (Rupees ten thousand) imposed upon the other two applicants/appellants i.e. Shri K.K. Mohanty, Managing Director and Shri R.K. Mishra, Ex-Liasion Officer respectively, we take up all the three appeals for disposal as the issue is well-settled by the precedent decisions of the Tribunal.2. The above quantum of duty has been confirmed against the manufacturer on the finding of clandestine removal of their final products which are in turn based upon the comparison of figures of manufacture, as shown in RG-I register and as reflected in the Balance Sheet of the appellant-company. The appellants during the course of hearing before the adjudicating officer explained that the figures of Balance Sheet are reflecting the total turnover of the factory and also mentioned the detailed figures under different heads like - how much is the fabrication job done by them and the figures representing the job work etc. The Commissioner did not accept the appellants' explanation and confirmed the demand by observing that the Balance Sheet is a statutory document prepared in accordance with the requirement of theCompanies Actgiving a true and fair view of the state of affairs and as such, the figures reflected therein cannot be disputed subsequently by any other forum.3. We have heard Shri B.N. Chattopadhyay, learned Consultant for the appellants and Shri A.K. Mondal, learned SDR, for the Revenue.4. We find that the Commissioner took up the figures given in the Balance Sheet. There is no other evidence on record to show the clandestine removal and clearance of the appellants' final product. The appellants had tried to explain that the figure as reflected in their Balance Sheet is the total turnover of the Company and does not represent the manufacturing quantity. The Tribunal in the case of Commissioner of Central Excise, Guntur v. Balaji Steel Corporation Ltd. reported in 2002 (150) E.L.T. 1189 (Tri. - Bang.) = 2002 (53) RLT 196 (CEGAT -Ban.), has held that higher sale figures shown in the Balance Sheet vis-a-vis RG-I figures explained as inclusive of sales of traded goods, cannot be made the evidence of allegation for clandestine removal in the absence of any other independent evidence.To the same effect is another decision of the Tribunal in the case ofSteel Authority of India Ltd. v. Commissioner of Central Excise, Bhubaneswarreported in 2001 (47) RLT 343 (CEGAT - Kol.), laying down that difference in figures of manufacture and clearance between annual financial account and RG-I, are not sufficient to establish clandestine removal. In another case reported in 2001 (130) E.L.T. 228 (Tri.)= 2001 (42) RLT 532 (CEGAT) in the case of C.C. Ex., Patna v. Universal Polythelene Industries, the Tribunal again reiterated the above decision and held that inflated figures of production given in balance sheet vis-avis RT-12 returns are not sufficient to establish clandestine removal.5. In the present case also, the entire findings are based on comparison of figures of Balance Sheet and RG-I. There is no other evidence on record to show that the appellants during the relevant period had indulged in any clandestine removal and clearance of the goods. It is well-settled that the burden for proving the clandestine clearance is upon the Revenue and is required to be discharged by production of sufficient and affirmative evidence, which we find is lacking in the present case. Accordingly, by following the ratio of the earlier decisions, we set aside the impugned order and allow the appeals with consequential relief to the appellants. Stay Petitions also get disposed of.