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2016 (6) TMI 542 - AT - Central ExciseClandestine removal - What is the effect of non-production by the Department of the original records RG-1 and RT 12 returns to the Tribunal - statements recorded from the proprietor and the authorized signatory and the loose sheets recovered during such operation - Held that:- the Authenticity was doubted due to their non-availability at the time to search and their submission belatedly at the time of recording of statement of proprietor on 01.08.2003. There is no submission by the revenue regarding the fact whether any cross verification with these statutory records were made by the officers during investigation. It is also not clear when these statutory records were taken over or perused by the department. Further, is to be noted while R.g.1 entries were discussed in the Tribunal’s order, the authenticity of entries in RT-12 periodical returns were not subjected to analysis. These returns are filed by appellant periodically with the Department. The question of their later manipulation does not arise as the original returns were to be with the Department only. Also the retraction of earlier statements were not made by affidavit or letter but by another statement dated 01.08.2003 recorded under section 14. Since it is the contention of the Revenue that statement recorded under section 14 is admissible as evidence and the contents therein are to be considered to arrive at a decision, it is necessary to take the statement dated 01.08.2003 also as admissible evidence subject to cross verification. Apparently, statement dated 01.08.2003 contradicts the earlier statements of inculpatory nature regarding clandestine removals. However, statement dated 01.08.2003 was made by the proprietor to explain the entries as made in the statutory records and returns in support of his claim about proper accounting and licit clearances. Therefore, in absence of original statutory records it will not be justifiable to arrive at a conclusion about the authenticity of the same. Any conclusion in this regard cannot be made by presumption or by reasoning. Accordingly, we hold that we are not able to arrive at a finding to interfere and to overturn the finding already recorded by the id. Commissioner (Appeals) based on the analysis of the contents of the statutory records. - Decided against the Revenue
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