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2015 (7) TMI 502 - CESTAT AHMEDABAD

2015 (7) TMI 502 - CESTAT AHMEDABAD - 2015 (329) E.L.T. 884 (Tri. - Ahmd.) - 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 opinio .....

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l 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 thickness in a consignment is not available. As per the cross-examination .....

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corded by the adjudicating authority, that calculations submitted by the appellant 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 Responde .....

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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 ap .....

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e appellant and CESTAT vide order NO. C-III-521 to 524/WZB/2003 dated 25.3.2003 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 .....

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Ajit Awasthi, Learned JDR appearing on behalf of the Revenue drew our attention 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 g .....

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and penalty and stay recovery thereof till the final decision for de-novo adjudication 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 .....

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er the present OIO dated 07.01.2015, Adjudicating authority has accepted the 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 .....

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icating authority. That their weight calculation are based on an affidavit dated 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 .....

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removal cannot be established only on a few confessional statements. 3. Shri 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 .....

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nager 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 vide order dated 25.3.2003 remanded the case for deciding the issue only on the basis of calculations submitted by the ap .....

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it dated 20.10.2014, that weight of metal container could be 1.25Kg and weight 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 C .....

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