TMI Blog1999 (2) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal who vide its Order No. 298/Cal/1990 remanded the matter to the Commissioner for de novo adjudication in the light of the observations made therein. 2. Briefly stated the facts of the case are as follows : The appellants' factory was visited on 19-9-1980 by the Central Excise officers who allegedly found 24 loose sheets from the appellants' premises. The department's case is mainly based on the entries made in these loose sheets, which according to them is the account of the goods manufactured by the appellants without accounting in statutory records and their clearances clandestinely without payment of duty during the period 16-4-1980 to 2-6-1980. 3. Arguing on the appeal Shri P.R. Biswas, ld. Consultant submitted that the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge about the same. He also submits that there is no signatures of any officer before whom the said statement was recorded which again places the said statement under grave doubt. He submits that their factory was closed from 28-8-1980 to 14-9-1980 under declaration of lay-off by the management and as per letter written by them to the department on 19-9-1980, the factory resumed production w.e.f. 19-9-1980 only after repair of furnace etc. was completed. In support of the closure of the factory he draws attention to the Orders of the Labour Court, Ranchi holding the declaration of lay-off as void ab-initio. He submits that this plea of the appellants has not been accepted by the adjudicating authority by observing that workers were fighting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly is different from the hand-writing on the other portions is gravely unjust. He submits that there could be an interpolation of the said hand-writing on page 3 which was specifically marked for the hand-writing experts to examine inasmuch as it has been their case right from the beginning that the loose sheets seems to have been written by some disgruntled employee of their company and have been planted by them. Shri Biswas further argued that apart from placing reliance on these note sheets, no other evidence has been procured by the department to establish the charge of clandestine removal. Statements of truck drivers have not been recorded and their customers as reflected in the loose sheets have not been examined by the department. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that he had no previous knowledge of these papers and that he suspected some foul play. He submits that the appellants had been shifting their stand from time to time during the various personal hearings held before the Commissioner. The plea of labour trouble was also taken by them in one of the later personal hearings and has been rightly discarded by the adjudicating authority as an after-thought. He also draws my attention to the comparison of entries made in the incriminating loose sheets and the entries made in RG-1 and the movement of the various trucks perhaps as recorded by the adjudicating authority and submits that on a comparison of these entries with the corresponding gate passes it becomes clear that the same trucks were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance and was not as a result of pre-planned search. In the absence of any seizure memo or Panchnama showing the place of recovery and presence of independent witnesses, the entire exercise is thrown in an arena of doubt. Statement of Shri Shroff also does not show the signatures of any of the officers. I also observe that the allegations against the appellants are of clandestine removal which are required to be established beyond doubt by the department by producing independent tangible and positive evidence and cannot be held against them on the basis of mere loose sheets, the recovery of which is also in doubt. No investigations from the alleged buyers of the said goods has been conducted by the department. The affidavits produced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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