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2018 (6) TMI 239 - AT - Central ExciseClandestine removal - multiple invoices - the demand is mainly based upon photocopies of alleged parallel invoices seized from the premises of ex-employee of the Appellant unit Shri Suresh Rakhunde who in his statement stated that the said photocopies pertained to the clearances of goods - Appellant has contended that such fake invoices were fabricated by their ex-employee and no goods were cleared by them under such invoices. Held that:- Though the department has investigated the transporters and buyers of the goods, however they did not find copy of single original copy of such invoice from any of the buyers inspite of the fact that as the invoices showed 73 buyers of such goods. Thus in absence of any affirmation or evidence from the buyers of the goods the demand cannot be confirmed on the basis of photocopies of parallel invoices seized from the ex-employee or the transporter - no reason has been given as to why Shri Rakhunde has stored the photocopies of such parallel/ multiple invoices and for what purpose. He was neither instructed by the owner of the unit nor he was maintaining any record. Further except these photocopies no record was found. The photocopies are not corroborated with any evidence in the form of accounting records or any independent corroborative evidence from the Appellant’s premises or from any other place. Even the show cause notice does not bring out any statement of drivers/ truck owners/ who allegedly consigned such goods. It is not even appearing as to how they have received freight for such transportation and from whom. The above assertions made by the Appellant gives credence to the arguments of the Appellant that merely based upon uncorroborated photocopies of invoices whose veracity itself is highly doubtful, the demand against the Appellant would not sustain. As regard allegation that the Appellant cleared Low carbon Ferro Manganese under the cover of invoice of High Carbon Ferro Manganee, we find that the allegation is based upon the goods seized during transportation and statement of some of the buyers who allegedly stated that High Carbon Ferro Manganese cannot be used to manufacture welding electrodes - the Appellant has challenged the test report on the ground that it is not known as to from where the samples were drawn and what were the goods sent for testing - there is no reason to deny the claim of the Appellant as it is not forthcoming as to from where the samples were withdrawn and whether the samples were withdrawn in presence of Appellant - the test report cannot be relied upon. The revenue has not been established the charges of clandestine removal against the Appellant by any cogent and tangible evidence. The charges are based solely upon third party statements and alleged photocopies of fake/ multiple invoices with no corroboration with any independent evidence - duty demand with penalty do not sustain - Confiscation also not sustainable - appeal allowed - decided in favor of appellant.
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