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2019 (12) TMI 546 - CESTAT KOLKATAClandestine removal - TMT Tor and Bars - corroborative evidences or not - Department has to establish that the appellant had the manufacturing capacity to produce the goods alleged to have been clandestinely cleared. No evidence has been brought on the record that the appellant had manufacturing capacity beyond the goods cleared with payment of duty. No charges of extra electricity consumption or alternate source of electricity has been alleged. HELD THAT:- It is evident from the Panchanama that the Kingston make pen-drive was recovered from the possession of the Director of the company, Shri Pramod Kumar Gupta. Whereas the appendix to the recovery memo clearly indicates that the documents were retrieved and made relied upon were from HP Pen Drive - the contention of the Learned Advocate is agreed upon that the alleged documents were not retrieved from the pen drive recovered from the possession of the Director of the company, Shri Pramod Kumar Gupta. In such circumstances, the charges of clandestine removal are based on the documents which do not belong to the appellant company. There were 5 computers installed in the office when the Panchanama was drawn and it was found that no incriminating documents or data was present in the said 5 computers. This clearly proves that the department does not have any source data of the said pen-drive and in absence of any certification to support the alleged data of the pen-drive, the said electronic data cannot be relied upon to prove the charges of clandestine removal. Hence, demand based on the said alleged pen-drive is not maintainable in the eyes of law and thus liable to be set aside. No evidence as regards to purchase of excess raw material, use of excess electricity, deployment of extra labor force to prove the illicit manufacturing and clearance activity has been brought into the record. No evidence as regards to purchaser of the raw material, transportation of finished goods, receipt of cash payment etc has been brought into the record. The Department is solely relying upon the statement of the Director of the company and only some of their employees. The statement of the Director is not conclusive and mere observatory in nature wherein he has stated that it might be possible that some of the entries will not match the corresponding invoices. Such a statement cannot be said to be of conclusive proof of clandestine removal in absence of corroborative evidence - Similarly, the statement of employees cannot be relied upon when the request of cross-examination has been denied on vague ground. Even otherwise Revenue chose not to examine any witnesses in adjudication, and in such a case their statements cannot be considered as evidence. The demand of duty, penalty and interest against the appellant and its Director is set aside - appeal allowed - decided in favor of appellant.
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