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2023 (8) TMI 47 - AT - Central ExciseClandestine removal of goods - pre-judged SCN - Recovery of chit and clearance of the goods mentioned established or not - major demand is based on the entries in the private record recovered from the third party - authenticity of documents could be proved by adducing evidence or not - corroboration of statements - penalties on appellant - HELD THAT:- On going through the Chit, it is found that if the said Chit has been recovered during the investigation from Shri Partha Banerjee, there is no authentication of the said Chit as neither it bears any signature of punchas nor any name of the officer who has seized the above said documents. Therefore, the said Chit is deemed to be a fictitious one as Shri Partha Banerjee has joined the services with the appellant in the month of August, 2009 whereas this Chit is bearing entries from June, 2009 to December, 2009 and it is also fact on record that he was not allowed to make any statement in his own handwriting, therefore the allegation that the Chit shows clandestine clearance of goods is not established as per the said Chit - the demand on the basis of Chit is not sustainable. It is found that the goods were received from Railway Authorities, which has been properly accounted for by the appellant - it is further noted that it is alleged that the appellant has removed 27653.657 MT of sponge iron on the basis of the loose slips recovered from the premises of M/s Sen Brothers Enterprises - on going through the said documents, but the Revenue has failed to establish that who is the author of the said documents and entries therein. Only the Author of the documents can say about the contents of the documents. Those documents were not recovered from the premises of the appellant. The documents recovered from the premises of the third party cannot be the basis to allege the clandestine removal of the goods. The Revenue has not come up with any conclusive evidence to establish the clandestine clearance of goods in question - the demand has been raised on the basis of documents recovered from the third party premises whose Author is not known and from the person to whom the documents have been recovered have retracted the statements in cross-examination as stated, these documents do not belong to the appellant . Moreover, there is nothing on record for procurement of excess raw materials, electricity consumption, transportation of goods of such huge quantity of goods from whom the goods were sold out. The allegation of clandestine removal of goods is not sustainable against the appellants. Therefore, no demand is sustainable - the said demand confirmed against the appellant is set aside. Penalties - HELD THAT:- As the demand against M/s Sen Ferro Alloys Private Limited is not sustainable, penalties on the appellants are not sustainable. The impugned order and the demand of duty and imposition of penalties on the appellants are set aside - Appeal allowed.
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