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2014 (6) TMI 382 - CESTAT NEW DELHI (LB)Clandestine removal of goods - presumption - proof by identification of handwriting or signature - evidential value of opinion of the Govt. handwriting expert - manufacture of ‘Shimla’ & ‘Vansh’ brand Gutkha, Pan Masala & Mouth Freshner which is sold in retail pouches - majority order - Held that:- opinion of handwriting expert is a weak evidence which should be taken with caution and is not reliable unless supported by other independent evidence. The allegation against the Respondent Company is sought to be proved by the opinion of the handwriting expert Sh. C.T. Sarwate, as Sh. Arvind Gupta of M/s. Hans Travels has not named Sh. Subhash Joshi and Sh. A.C. Upadhyay, the employees of the Respondent, as the persons who had taken delivery of the consignments of outer pouches in his presence and had signed the delivery sheets and neither anyone familiar with their signatures has identified the signature on the luggage delivery sheets nor they have accepted the signature on the luggage delivery sheets as their signatures. For testing the correctness of the opinion of Sh. Sarwate, his cross examination was necessary, as other handwriting expert Sh. A.N.Ganorkar has given a contrary opinion and both Sh. Subhash Joshi and Sh. A.C.Upadhyay have stated that signatures on the documents of M/s. Hans Travels are not their signatures. But cross examination of Sh. Sarwate was not possible on account of his death. Therefore, the opinion of Sh. C.T.Sarwate, by itself, has no evidentiary value and in view of the judgments of Apex Court, and various high courts, mentioned above it not even admissible as evidence. The allegation of un-accounted receipt of outer pouches for packing of retail pouches of Gutkha, Pan Masala and Mouth Freshner cannot be upheld, the presumption of un-accounted manufacture of retail pouches of Gutkha, Pan Masala and Mouth Freshner and their clearance without payment of duty, cannot be made and as such, the duty demand against the Respondent cannot be upheld. The Commissioner has dropped the duty demand only on the ground that merely on the basis of alleged receipt of outer pouches for packing retail pouches of Gutkha, Pan Masala & Mouth Freshner without any other evidence regarding procurement of other raw-materials like plastic lamination for retail pouches, Supari, Kattha, Tobacco etc. the duty demand is not sustainable. - for making such a presumption of fact under Section 114 of the Indian Evidence Act, which would shift the burden of proof to the assessee, there must be cogent and concrete evidence of the fact of un-accounted receipt of any one or more of the principal raw-materials or evidence of un-accounted consumption of the principal raw-materials which admittedly had been received. Merely on the basis of the fact that there was no production of Shimla 2-in-1 Pan Masala during Sept.01 to Dec.01 and during this period only 21,800 outer pouches for Shimla Gutkha had been used, it cannot be presumed that 52,800 outer pouches for Shimla Gutkha and 16000 outer pouches for 2-in-1 Shimla Pan Masala had been used in the manufacture of un-accounted Shimla Gutkha and Shimla 2-in-1 Pan Masala, which had been cleared clandestinely without payment of duty, as their consumption for accounted production during August 2001 has not been ruled out. - Decided against Revenue.
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