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M/s. Abhay Industries Versus Commissioner of Central Excise & S.T., Daman

2015 (7) TMI 502 - CESTAT AHMEDABAD

Clandestine manufacutre and removal of goods - Retracted confessional statements - whether there was a clandestine removal of the raw materials imported by the appellant on which Modvat credit was taken - Held that:- It is observed that adjudicating authority is relying upon the opinion given by Shri Anand Tukaram Sardar, Manager of the appellant given before the date of Panchnama but not giving any credit to the opinion given the same person under affidavit dated 20.10.2014, that weight of meta .....

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014 (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 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 .....

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llant are not accepted, can not be upheld in the absence of any evidence on record that all the metal sheets imported by the appellant, used for manufacture of container, had uniform thickness and weight. - Decided in favour of assessee. - Appeal No. E/10517/2015 - ORDER No. A/10904 / 2015 - Dated:- 30-6-2015 - Mr. H.K. Thakur, Hon ble Member (Technical),J. For the Appellant : Shri S.P. Mathew, Advocate For the Respondent : Shri Lalatendu Patra, Authorised Representative ORDER Per : Mr. H.K. Tha .....

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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 impro .....

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03 passed the following order and remanded the case to the adjudicating authority for considering the calculations submitted by the appellants:- 1. Shri S.P. Mathew, Learned Advocate appearing on behalf of the appellants has filed calculation sheets showing a difference of 145.344MT of raw material compared to the difference of 1086.091 MT of raw materials as alleged by the Department. The Department has not brought on record the evidence of retailers to whom it is alleged to have sold said raw .....

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on to the statement of Shri Rajesh G. Shah recorded under Section 14 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 no .....

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judication after affording reasonable opportunity of being heard to the appellants and pass a fresh speaking order. That Commissioner of Central Excise and Customs, Daman vide OIO No. 5/MP/2005 dated 30.6.2005 did not agree with the calculations submitted by the appellant and again confirmed the demand and imposed penalties. Appeal filed against this order was rejected by CESTAT vide order dated 03.02.2009 and appellant took the matter to Bombay High Court and the Hon ble Bombay High Court vide .....

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method of weighment of containers by investigation and has rejected the calculations submitted by the appellant. 2.1 Learned Advocate appearing on behalf of the appellant made the bench go through some copies of Bills of Entry under which the inputs were imported, and made the bench go through the thickness 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 conta .....

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ted 20.10.2014 filed by Shri Anand Tukaram Sardar, the Supervisor of the appellant, and that this affidavit was produced before the adjudicating authority but no findings have been given by the adjudicating authority as to why this affidavit is not acceptable. That as per the cross-examination of the investigating officer before the adjudicating authority it is very clearly demonstrated that thickness of imported sheets vary greatly. It was also the case of the appellant that for making a contai .....

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Lalatendu Patra (AR) appearing on behalf of the Revenue made the bench go through paras 6.1 to 6.8 of the OIO dated 07.01.2015 to argue that method adopted by the department for calculating the shortages of raw material was correct and strongly defended the OIO passed by the Adjudicating authority. It was his case that the calculations were made on the basis of statements given by the appellants in these proceedings. 4. Heard both sides and perused the case records. The issue involved in the pr .....

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inion 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 vide order dated 25.3.2003 remanded the case for deciding the issue only on the basis of calculations submitted by the appellant. This was reiterated by the Hon ble Bombay High Court and subsequent .....

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t of metal component set of one container could be 1.5 Kg. 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 (supra) has held that only confessional .....

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