2022 (11) TMI 858 - AT - Central Excise
Clandestine Removal - reliance on private records - 1964.970 MT of C.I. Mould - existence of corroborative evidences or not - burden to prove - non-compliance with Section 9D of the Central Excise Act, 1944 - HELD THAT:- In the course of the search operation, no parallel invoices or challans were found. All the invoice books found in the search operation were found to be unused. It is held in the impugned Order that the said invoices were intended to be used - the six statements of three persons Sri Pitabas Chhotray [dated 23-03-2011 & 20-01-2012], Sri Anirudha Sutar [dated 23-03-2011 &21-09-2011] and Sri Ajay Kumar Das [dated 23-03-2011 & 19-09- 2011] are not examined and cross examined by the adjudicating authority, hence, by operation of Section 9D of the Central Excise Act, 1944, said six statements have become irrelevant piece of material, and therefore, have to be eschewed from evidence.
In the instant case the entire case is based on the private records seized from the residence of the employee Shri Anirudha Sutar and office of the Appellant. There is considerable force in the contention of the Appellant that the private records relied upon by the Revenue cannot be a basis to uphold the serious charge of clandestine clearance. It is settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing concrete and cogent evidence. In the absence of corroborative evidence, the issue in the instant case i.e. “the charge of clandestine clearance” cannot be labeled against the assessee.
The allegation of clandestine manufacture and removal of finished goods by the Appellant made in the Show Cause Notice, is merely on assumption and presumption, without sufficient material evidence corroborating the said allegations - impugned order is set aside - penalty imposed under Rule 26 of the Central Excise Rules, 2002 on Shri Pitabhas Chhotray, Director of the Appellant Company is also set aside - appeal allowed.