2022 (4) TMI 757 - CESTAT AHMEDABAD

100% EOU - Clandestine removal - illicit clearance of imported yarn and indigenous Yarn - detection of shortages at the time of the visit of the officers - recovery of Kachha Delivery Challans from the premises of Appellant - presence of corroborative evidences or not - demand based on assumptions and presumptions - HELD THAT:- It is settled law that though the admission is extremely important piece of evidence it cannot be said to be conclusive and it is open to the person who has made the admission to show that this is incorrect. It is also noted that there are numerous decisions of the Tribunal laying down that such admission of shortages without there being any admission of clandestine removal, cannot be considered to be conclusive evidence to establish the guilt of the assessee. Burden of proof is on the Revenue and is required to be discharged effectively. Clandestine removal cannot be presumed merely because there was shortages of the stock or on the basis of statement of person only - Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VERSUS LAXMI ENGG. WORKS [2001 (8) TMI 162 - CEGAT, NEW DELHI] has held that there being no corroborating evidence in the form of receipt of raw materials or sale of final products to each buyers, the allegations of clandestine removal cannot be upheld.

The department apart from the Kachcha Delivery Challan seized from the Appellant’s premises and statement of partner and supervisor has not been able to give any independent evidence which can corroborate the charges. No statement of alleged buyers to whom the impugned goods were cleared recorded by the department. The Appellant has placed reliance upon various judgments to canvas their point that in absence of corroborative evidence no demand can be made - it is also found that apart from the alleged shortages, there is virtually no other evidence on record to reflect upon the clandestine activities of the appellant. As per the settled law such shortages, by themselves, cannot lead to the fact of clandestine removals so as to justify confirmation of demands.

The entire case of the Revenue is based upon the surmises and conjectures. No concretes positive and tangible evidence appears on record. The evidences brought into the record by the department are incomplete, inconsistent and not a reliable piece of evidence to prove charges of clandestine removal.

The demand of duty along with interest and imposition of penalties as well as confiscation and imposition of redemption fine on the raw materials and the finished goods are not sustainable.

Penalties imposed on partner of Appellant’s firm - HELD THAT:- The demand itself is not sustainable against the main Appellant, hence the question of penalties on partner of Appellant’s firm does not arise.

Appeal allowed - decided in favor of appellant.