TMI Blog2009 (4) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the person who maintained the register of the transport company showing transport of raw material to the respondents. As these witnesses were not allowed to be cross-examined by the respondents their depositions could not have been relied on by the original authority. We find that in the instant case Revenue could not produce any evidence for receipt of the raw material and sale of the clandestinely cleared goods. There is no evidence of receipt of cash against unaccounted clearances. There was no attempt to ascertain any discrepancy in the stock of raw material or finished goods at the premises of the respondents. Held that the finding of clandestine removal is based on assumption and presumption. – revenue’s appeal dismissed - E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by M/s. R.V. Steels Pvt. Ltd., Shri M.R. Dhyaneshwar and M/s. Sujana Steels Ltd., the Commissioner (Appeals) held the demand to be not sustainable and set aside the demand and penalties. He found that the original authority had found the charge of clandestine removal by the respondents on the basis of statements given by the employees of M/s. Sujana Steels Ltd., M/s. Sujana Industries Ltd. and M/s. Jaiganesh Transport and brokers. Relying on the decision of the Tribunal reported in 1996 (85) E.L.T. 260 (T) and 1999 (107) E.L.T. 107 (T) he found that any demand based on records of third parties without any other evidence was not sustainable in law. The original authority had relied only on statements and no other material evidence. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been raised in the appeal. The Order-in-Original had been passed relying on the statement of Shri M.R. Dhyaneshwar, Works Manager of the assessee. The Hon'ble Tribunal vide case law reported in 2000 (121) E.L.T. 650 (T) had held that statement of the Production Manager had to be preferred over the statements of the Director and Supervisor, production. Hence the demand of duty and imposition of penalty appeared to be correct. The appellate authority had held that reliance could not be placed on retracted statement of Shri M.R. Dhyaneshwar. This was incorrect as the retraction by Shri M.R. Dhyaneshwar had been made after more than a year of the recording of the original statement. The Commissioner (Appeals) wrongly observed that the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce corroborating the third party statements. The statement by the proprietor of the transport company was relied on to find that scrap imported by SSL had been delivered to the respondents. Record of the transporter however showed delivery at a place different from the location where the respondent's unit is situated. Shri N. Kuppusamy, Proprietor of Jaiganesh Transport deposed that false destination was recorded in their register at the instance of the involved parties. We do not find this explanation to be genuine as we find no necessity for creating a false account in a private record of the transporter. The Department could not identify and obtain a statement from the person who maintained the register of the transport company showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents amply support our finding: (i) In Commissioner of Central Excise, Patna v. Universal Polythelene Industries - 2001 (130) E.L.T. 228 (T), the Tribunal held that clandestine removal and clearance was a serious charge against the manufacturer which was required to be discharged by the Revenue by production of sufficient and tangible evidence. Standard of proof in such cases had to be on the basis of absolute proof and not on the basis of the preponderance of probabilities. (ii) In T.G.L. Poshak Corporation v. Commissioner of Central Excise, Hyderabad - 2002 (140) E.L.T. 187 (Tri. - Chennai), the Tribunal made the following observation: "We have carefully considered the submission and perused the impugned order. Insofar as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Food Products Pvt. Ltd. v. CCE - 2005 (188) E.L.T. 107, the Tribunal held that when the proceedings against supplier of raw material was dropped evidence of such person in finding of supply of raw material for production and clearance of unaccounted goods could not be relied on. In the same decision the Tribunal had held that evidence of witnesses not available for cross-examination could not be used against the assessee. (v) In Premium Packaging Pvt. Ltd. v. CCE - 2005 (184) E.L.T. 165 (Tri. - Del.), the Tribunal held that charge of clandestine removal of dutiable goods had to be proved by the Department by adducing cogent, convincing and tangible evidence and not on assumptions and presumptions. It was also held that statements of Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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