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2019 (7) TMI 565 - CESTAT AHMEDABADClandestine removal - grey fabrics - Grey Fabrics received for Job Work was found to be short - 75114 L. Mtrs of Finished MMF was found to be entered in job cards but not in lot register - HELD THAT:- There is no co-relation of the said names with the lot register. The show cause notice has relied upon statement of Shri Gulshan Bhatia wherein he stated that the goods were cleared without payment of duty. However subsequently he retracted his statement - when the statement of Shri Gulshan Bhatia was retracted as having been obtained under pressure the same cannot be relied upon. Even otherwise in absence of cross examination of witnesses, their statements could not have been relied upon - in absence of cross examination of witnesses, no demand can be made against on the basis of statements. Demand of ₹ 2,43,369/- has been made on the ground that a quantity of 75114 L. Mtrs of Finished MMF valued at ₹ 20,28,078/- mentioned in job cards was not found in lot register and same has been cleared illicitly in open market - HELD THAT:- Only on the basis of entries mentioned in job cards which do not match with the lot register, it cannot be said that the said goods shown in the job cards were removed without payment of duty. There is no evidence on record to show that such goods were removed in open market. Reliance has been placed upon the statement of Shri Gulshan Bhatia, which stands retracted. Except recording some statements, no evidence is appearing that the goods were disposed of in the market or if the goods belonging to the merchant manufacturers, when the goods were transported to them and what were the evidences for disposal of such goods. Thus, merely on the basis of statements, a demand cannot be made - If some lot numbers are not found in lot register, the same cannot be inferred to have been removed clandestinely - demand set aside. Demand of ₹ 55,09,868/- made on the basis of private register wherein the fabrics was found to have been entered without lot number - HELD THAT:- The appellant has pleaded that the lot numbers of main one or two parties was shown therein, though it may contain more than two lot numbers. We find that no statement of the Printing master was recorded to ascertain the facts regarding the entries made in the private register. It is coupled with the fact that no corresponding clearances of such register were found. In such case, the private register cannot be made basis for demanding duty from the appellant unit on the ground that it contained details of goods removed without payment of duty - demand set aside. Demand of ₹ 2,43, 369/-has been made against the appellant on the ground that it pertains to the quantity of 65733L.mtrs. of grey fabrics has been found from private register as substitution against the lot numbers found in private register were cleared and processed fabrics of quantity 59159.75 L.Mtrs - HELD THAT:- When the person maintaining such private register has not been interrogated nor his statement has been recorded, in such case, no allegation can be made on the basis of Private Register and no duty can be demanded. The impugned order demanding duty and penalty is not sustainable and is accordingly set aside - Appeal allowed - decided in favor of appellant.
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