AZAD ENGINEERING WORKS Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE above captioned appeals have been filed by the appellants against the common order -in -original vide which duty and penalty against M/s. Azad Engineering Works and penalties against other appellants under Rule 209A as detailed therein, had been confirmed.

(2.) THE learned Counsel has contended that there is no evidence on the record to substantiate the charge of clandestine manufacture of the goods in question (diesel generating sets, diesel engines) by M/s. Azad Engineering Works, appellant No. 1 and clearances of the same by them to the other appellants without payment of duty. Therefore, the impugned order against all the appellants deserves to be set aside. On the other hand, the learned JDR has reiterated the correctness of the impugned order.

(3.) I have heard both sides and gone through the record. The bare perusal of the record shows that appellant No. 1, M/s. Azad Engineering Works is engaged in the manufacture of diesel engines and diesel generating sets with ISI mark under the brand name of 'power master', 'power man' and 'power shakti'. The charge of clandestine manufacture of the goods against them had been based on the allegations that as per the documents furnished by various branches of Punjab Agricultural Development Bank, the engines financed by them on the request of the various farmers were much more than the number of the engines shown as manufactured by the appellants. M/s. Azad Engineering Works in their statutory record and as such there was suppression of the actual manufacture of the branded engines by them from the Department. By so doing, they had evaded the duty of Rs. 4,00,096/ -. To substantiate these allegations, reliance has been mainly placed on the record furnished by the above said Bank, in the form of invoices submitted by the farmers showing purchase of engines bearing brand name of the appellant, M/s. Azad Engineering Works, from various dealers including the other appellants. But in my view, this evidence did not provide sufficient and tangible evidence regarding the clandestine manufacture and clearances of the engines by them. The perusal of the record shows that M/s. Azad Engineering Works (appellant No. 1) requested for copies of those documents which the Department during the investigation collected from the above said Bank, such as purpose utilisation certificate (PUC), insurance cover note in respect of diesel engines financed by the Bank in favour of various farmers. But none of those documents were supplied to them. There is nothing on the record to suggest if diesel engines bearing the brand name of the appellants, and got financed by the farmers on the strength of the invoices issued by the dealers, were seized during investigation. There is also no evidence on record to suggest that statements of the farmers who got those engines financed were recorded in order to ascertain the actual purchase of the engines by them from the dealers. None of the dealers including the present appellants named at SI. No. 2 to 9, had admitted the purchase of the diesel engines, from the appellant No. 1 M/s. Azad Engineering Works, in a clandestine manner. They had rather disclosed and produced copies of the invoices vide which they purchased the diesel engines from appellant No. 1. No excess or unaccounted diesel engines were found lying in the factory premises of the appellant No. 1, at the time of checking. No shortage or excesses of the raw material was also detected while carrying out physical verification of the raw materials, by the officers. Therefore, simply on the basis of the invoices which were furnished by farmers for procuring loans from the bank against the diesel engines, no inference could be legally drawn that those engines were sold by appellant No. 1 in a clandestine manner to the dealers who thereafter allegedly sold the same to the farmers, for want of any other corroborative evidence.