Judgment:
1. The above captioned appeals have been directed by the appellants against the common order-in-appeal dated 16-5-2002 vide which the Commissioner (Appeals) has affirmed the order-in-original of the Joint Commissioner regarding the confiscation of the goods, vehicle and imposition of penalty of various amounts as detailed in that order itself.
2. The facts are not much in dispute. During the course of transit checking on 11-10-1999, the Preventive Officers of Central Excise, intercepted a vehicle Eicher Cantor bearing No. CCI-8406. The owner of the truck, Shri Anis Mansoori, produced four invoices before the Officers on their asking, out of which three were of 11-10-1999 and one dated 9-10-1999 bearing No. 838. The goods as well as the truck were seized. The statement of Shri Ramesh Sharma, Finance Manager of the company, was recorded wherein he disclosed that the goods of invoice no. 838 dated 9-10-1999 were in fact initially loaded on that very day itself along with the other goods, but due to the mechanical problem in that truck, the same was brought back to the premises and that the goods of that truck were loaded in another truck along with the goods of the invoices dated 11-10-1999. On completion of the investigation, the show cause notice was served on the company as well as the owner of the truck. After hearing them, the Joint Commissioner confirmed the order of confiscation of the goods with an option to get the same redeemed on payment of redemption fine and imposed penalties of various amounts as detailed by him in the order-in-original. That order had been affirmed by the Commissioner (Appeals).
3. The perusal of the show cause notice shows that two-fold allegations were levelled against the company, appellants No. 1, for the confiscation of the goods; one that the goods covered by invoice No.838 dated 9-10-1999 were being transported on 11-10-1999 along with the goods of the invoices of that date without any intimation to the competent authority; and second, that there was a reasonable belief that the excisable goods were cleared by the company through invoice No. 838, dated 9-10-1999 on that very date and some different goods again being cleared under that very invoice in a clandestine manner. So far as the transportation of the goods of the invoice dated 9-10-1999 through the truck in question on 11-10-1999 along with the other goods of the invoices issued on that very date is concerned, the same has not been, no doubt, disputed by the appellants' company. But the statement of Shri Ramesh Sharma, Finance Manager of the company, which was recorded on 12-11-1999 explaining the circumstances under which the goods were being transported, had been wrongly ignored and not given any weightage. He in his statement clearly explained that the goods of the invoice dated 9-10-1999 were initially loaded on that very date in a different truck, but due to mechanical problem in that truck, it was brought back and parked in the premises and the goods could not be transported on that very date. He further also disclosed that the goods of the invoice dated 9-10-1999 were being transported along with the goods of invoice dated 11-10-1999. No inquiry was conducted for cross checking his statement. The intimation for non-removal of the goods on 9-10-1999 itself was not given by the company to the competent authority as disclosed by them, in their reply to the show cause notice, because 9-10-1999 was Saturday and 10-10-1999 was Sunday, and on both these days, the Office of the Department was closed. The goods were transported by them on the next working date i.e. 11-10-1999.
4. Regarding the clandestine removal of the goods under the cover of invoice dated 9-10-1999, after having earlier removed the goods covered by that very invoice as alleged in the show cause notice, there is not an iota of evidence on the record to substantiate the same. No discrepancy in the statutory record of the company was found for raising an inference about the clandestine removal of the goods by the company. No physical verification of the stock was also carried out by the Department. No statement of any person to whom the goods covered under invoice No. 838, dated 9-10-1999 were allegedly delivered before 11-10-1999, was recorded. The fact that the goods covered by the invoice dated 9-10-1999 were being transported along with the other goods on 11-10-1999, was not sufficient to raise an inference about the clandestine removal of the goods by the appellants. It is well settled that the charge of clandestine removal of the goods, against an assessee cannot be based on surmises and conjectures. It has to be established by the Department by cogent, tangible and acceptable evidence. But such an evidence in the instant case is badly lacking.
5. In view of the discussion made above, the impugned order of the Commissioner (Appeals) cannot be legally sustained and the same is set aside. As a result, the appeals of the appellants are allowed with consequential relief, if any, permissible under the law.