TMI Blog2015 (7) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... Once the same person is giving contradictory opinion then none of these opinions is acceptable. Adjudicating authority should have only restricted to the calculations submitted by the appellant, as per remand directions (without giving any credence to the contradictory opinion given by the same person). Further, jurisdictional Gujarat High Court in the case of CCE vs. Saakeen Alloys Private Limited (2014 (5) TMI 606 - GUJARAT HIGH COURT) has held that only confessional statements can not be made the sole basis of clandestine removals. It is observed from the representative copies of the bills of entry relied upon by the appellant that only the highest guage of the metal sheet imported is given and lower limit of thickness or actual thic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11AC of the Central Excise Act, 1944, read with Rule 173(Q) (1) of the erstwhile Central Excise Rules, 1944. 2. Shri S.P. Mathew (Advocate) appearing on behalf of the appellant argued that present appeal represent third round of litigation and the issue involved is whether appellant has clandestinely diverted raw materials (M.S. Sheets and Tin Plates) imported by the appellant, and used for the manufacture of Metal Containers and Components, for which Modvat credit was availed by the appellant, Learned Advocate submitted that a show cause notice dated 09.02.2001 was issued to the appellant by Commissioner of Central Excise and Customs, Surat-II for the improper taking credit of ₹ 33,94,591/-, on the ground that imported good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and submitted that such recording is a judicial proceeding. Therefore, his contention is that the statement may be legally relied on. 3. After hearing both sides and perusal of the records, we find that the calculation as submitted by the appellants bears a big difference with the calculation arrived at by the Department. It is not feasible for us to go into details of this calculation. Besides, as mentioned above we also do not find any independent corroborative evidence to support the allegation of the Department. In these circumstances, we think it fit to remand the matter to the adjudicating authority for considering the calculation now submitted. Learned JDR and the appellants both are agreeable for remand to the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details given in these bills of entry copies to argue that thickness of tinplates imported varies greatly. It was his case that the size of a container may be same but the weight of the container varies on account of thickness of metal sheet used. It was strongly argued by the Advocate that due to difference in the thickness the standard average weight of 950gms per unit and 16gms per Ring-O-Seal (ROS) taken by Revenue is not correct and that the average weight should be 1.588 Kgs and 0.040 Kgs. for container and ROS as mentioned in the last column of Para 6.1 of the OIO dated 07.01.2015 passed by the Adjudicating authority. That their weight calculation are based on an affidavit dated 20.10.2014 filed by Shri Anand Tukaram Sardar, the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val of the raw materials imported by the appellant on which Modvat credit was taken. Revenue made the case against the appellant on the grounds of a Panchnama drawn on 23.12.1998 where three samples of metal containers, container components and Ring-O-Seal, used for making containers, were taken and weighed. A statement dated 03.12.1998 of Shti Anand Tukaram Sardar, Manager of the appellant was recorded before drawal of Panchnama who gave an opinion that average weight of container and component sets varies from 900gms to 950gms. Both Shri Anand Tukaram Sardar and Proprietor of the appellant have retracted the statements recorded during investigation on the grounds that these were recorded under duress. Looking to all these facts, Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was argued that weight of the metal sheets used in the manufacture of metal containers varies. It is observed from the representative copies of the bills of entry relied upon by the appellant that only the highest guage of the metal sheet imported is given and lower limit of thickness or actual thickness in a consignment is not available. As per the cross-examination of Shri B.K. Verma, Superintendent, who investigated this case, it has come out that the thickness of materials imported by the appellant varies. It is also clear from the cross-examination of the investigating officer that the thickness of the metal sheets was not verified as the thickness is not mentioned in the sale documents and also due to the fact that Manager-cum-Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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