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2016 (10) TMI 677 - CESTAT NEW DELHISuppression of facts - clandestine removal of finished products - demand of duty along with interest and penalty - documents seized on search of premises did not tally with facts supplied - Held that: - the Commissioner (Appeals) has erred in taking the view that there is not enough evidence of clandestine removal of goods. Even though the statement of Shri Sanjay Kejriwal, who is said to be the author of the private records recovered has not been recorded, it stands admitted by Shri Tekriwal, Director about the truth of the contents of the private notebooks. Consequently, I find no reason to disallow this piece of evidence. The evidence of clandestine clearance has been brought on record only as a result of investigation undertaken by the department. The evidences unearthed by the department are not statutory documents and would have gone undetected but for the investigation. Therefore this is a clear case of suppression of facts from the department and certainly the extended period of limitation is invocable in this case and hence the demand cannot be held to be time barred. The Commissioner (Appeals) order setting aside the demand is not proper. The demand is based on evidence which stands admitted by Director on records recovered from the assesses factory. There is nothing on record to the effect that statements relied upon have been extracted under duress. The Director also has voluntarily stated that he is satisfied with the manner of stock taking and search - in present case the demand is on the basis of private records seized in search and which have been admitted by the Director himself as pertaining to clandestine clearances. I also find that duty also stands demanded only on those clearances which are not covered by invoices. Demand justified - appeal allowed - decided in favor of Revenue.
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