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2016 (5) TMI 383 - GUJARAT HIGH COURTClandestine production and removal of goods - Allegation on the basis of 62 reconstructed challans - Held that:- the Tribunal, in the impugned order, noted that the case of clandestine removal is based predominantly on 62 reconstructed copies of delivery challans-cum-proforma invoices. Such challans were, however, neither original nor xerox copies. There was no identification of the author of these challans. Thus, reconstructed challans were not recovered from the premises of the assessees. Even Commissioner (Appeals) had found that 20 of these reconstructed documents were fake. In the challans, neither the vehicle number nor the name of the transporter was mentioned. No investigation was undertaken by the department to corroborate the contents thereof by recording the statements of the transporters. No confirmatory statements of the buyers were available on the record. Duty demanded - Held that:- the Tribunal, observed that due to major renovation at the office/godown of JBMC, subject goods were temporarily stored in Appellant's factory premises. No investigation has been done in order to refute the claim of the main appellant, by recording the statement of transporter or the supplier of trader from whom the goods have been claimed to be purchased from JBMC. It is a well established law that documentary evidence will prevail over an oral evidence especially in these proceedings where cross examination of such witness is not provided. As the decision of Tribunal was based entirely on appreciation of evidence on record, no question of law arises. - Decided against the revenue
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