TMI Blog2008 (8) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant case file has been examined in this office and on examination, it is seen that the de novo adjudication order giving relief to the assessee is based on the fact that the private documents cannot be relied upon. However, from records, it is seen that the persons maintaining the private document has avoided investigation. In such a situation, the motive of the assessee is not free from doubt. Further, the said private documents have been seized during the course of search within the factory premises. Hence, the contents of such private documents cannot be brushed aside just like that. Moreover, the adjudicating authority has not considered the provision of Section 36A of the Central Excise Act, 1944. Therefore, rejection of such pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see by de novo adjudication was undesirable when the person maintaining such record avoided investigation. (ii) Motive of the assessee was not free from doubt. (iii) The documents were seized from factory premises. (iv) Contents of documents cannot be set aside. (v) The Adjudicating Authority did not consider provision of Section 136A of the Central Excise Act, 1944. 5. The ld. Departmental Representative appearing for the appellant reiterated the grounds of appeal and submitted that when the Labour Contractor avoided summon, demand should have been confirmed against the Respondent. Ld. adjudicating Authority has not properly considered the seized material recovered from the factory. Rejection of private records was unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and for the failure of Revenue to follow process of natural justice the matter was remanded. When the de novo proceeding was pending, Revenue did not satisfy the ld. Adjudicating Authority about their stand. Therefore, the de novo order was passed very reasonably and does not call for intervention. 8. Heard both sides and perused the record. 9. Copy of the Review order placed by Revenue specifically demonstrated that the private record was the basis for the bone of contention. Ld. Adjudicating Authority did not rely on such documents. Therefore, Revenue preferred appeal on this limited scope. When this was the cogent reason for the appeal, Revenue could not bring out anything to appreciate the successive steps taken for findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases that such presumption is not permissible unless it is corroborated by reliable, independent and substantial corroborative evidence. Such a note may give rise to suspicion about the clandestine manufacture and surreptitious removal of excisable goods, but such suspicion cannot take the place of proof. It is a settled principle of law that in order to establish a clandestine manufacture and surreptitious removal it has to be established by documentary evidences the procurement of excess raw materials utilized for the manufacture of the such final product, labour employed, power consumed, packing materials used for package of such goods, the consignees to whom the goods were sold and the particulars of realization of the sale proceeds. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w materials, consumption of power, utilization of labour, realization of sale proceeds of such goods etc. as observed by the Tribunal in a number of cases. In view of such development I am constrained to observe that so far as the allegation of excess production and clearance of finished excisable goods based on the recording of loading in the private register is concerned the charges have not been conclusively proved in the present case. I therefore order that the demand of duty to the said extent is not enforceable. Only issue is left for consideration i.e. recording of excess Soda Ash found available over the recorded balance at R.G. 23A part I valued at Rs. 1,10,597/- in unit no. 1 of the assessee. But neither the said raw materials f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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