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2015 (7) TMI 502 - CESTAT AHMEDABADClandestine manufacutre and removal of goods - Retracted confessional statements - whether there was a clandestine removal of the raw materials imported by the appellant on which Modvat credit was taken - Held that:- It is observed that adjudicating authority is relying upon the opinion given by Shri Anand Tukaram Sardar, Manager of the appellant given before the date of Panchnama but not giving any credit to the opinion given the same person under affidavit dated 20.10.2014, that weight of metal container could be 1.25Kg and weight of metal component set of one container could be 1.5 Kg. Once the same person is giving contradictory opinion then none of these opinions is acceptable. Adjudicating authority should have only restricted to the calculations submitted by the appellant, as per remand directions (without giving any credence to the contradictory opinion given by the same person). Further, jurisdictional Gujarat High Court in the case of CCE vs. Saakeen Alloys Private Limited (2014 (5) TMI 606 - GUJARAT HIGH COURT) has held that only confessional statements can not be made the sole basis of clandestine removals. It is observed from the representative copies of the bills of entry relied upon by the appellant that only the highest guage of the metal sheet imported is given and lower limit of thickness or actual thickness in a consignment is not available. As per the cross-examination of Shri B.K. Verma, Superintendent, who investigated this case, it has come out that the thickness of materials imported by the appellant varies. It is also clear from the cross-examination of the investigating officer that the thickness of the metal sheets was not verified as the thickness is not mentioned in the sale documents and also due to the fact that Manager-cum-Authorised signatory and the Proprietor of the appellant gave clear admissions of the weight of the container. The findings recorded by the adjudicating authority, that calculations submitted by the appellant are not accepted, can not be upheld in the absence of any evidence on record that all the metal sheets imported by the appellant, used for manufacture of container, had uniform thickness and weight. - Decided in favour of assessee.
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