TMI Blog2015 (11) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... d broker are not allowed and therefore, the contention of the Learned Authorised Representative cannot be accepted. The Learned Authorised Representative strongly relied upon the decision of the Tribunal in the case of Shalini Steel Pvt Ltd Vs CCE, Hyderabad - [2010 (3) TMI 700 - CESTAT, BANGALORE]. In that case, the Central Excise officers recovered various documents from the premises of assessee, which was not seriously disputed by the assessee. In this contest, the Tribunal observed that the value of documents could not be lost in absence of cross examination of the employee. The said case law could not be applicable in the present case. - impugned order cannot be sustained and it is set aside - Decided in favour of assessee. - Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Appellant Company. Further, penalty of ₹ 6,00,000/- was imposed on Shri Manish R Agarwal, Director of the Appellant Company(Appellant No 2 herein). By the impugned order, the Commissioner (Appeals) rejected the appeals of both the appellants. 4. The Learned Advocate on behalf of the appellant submits that the entire case was made out on the basis of the statements of the buyer and one broker and the documents recovered from their premises. He further submits that no search was conducted at the appellants premises. It is further submitted that the only one statement of the Appellant No 2 was recorded which was retracted within a few months in reply to the show cause notice. The appellant categorically requested for cross exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by their accountant. They have also seized daily reports from the premises of the buyer. The entire demand of duty was calculated on the basis of the seized records recovered from the premises of the buyer. 7. The Commissioner (Appeals) observed that Appellant No 2, in his statement dtd 14.5.2009 accepted the statement of the buyer and broker. The appellant in their reply to show cause notice dtd 3.10.2009 retracted the statements. It is observed by the Commissioner (Appeals) that the retraction of the statements under duress of the Appellant No 2, is a brain child of the Learned Advocate and not Shri Manish R Agarwal. The appellant requested cross examination of the buyer and the broker in their reply to show cause notice. The Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l settled that the charge of clandestine removal cannot be proved merely on the basis of the documents recovered from the outsider without any corroboration of evidence at the premises of the assessee. It is also noted that the case was made out on the basis of statements of the buyer and the documents recovered from their premises and in this situation, the cross examination of the buyer and the broker are necessary to establish the truth. The Tribunal in the case of Arya Fibres Pvt Ltd vs CCE - 2014(311)ELT.529 (T) held that clandestine manufacture and removal, Reliance on private records seized from buyer s premises not to be the sole basis for demand especially when corroborative evidence like purchase of extra raw material, actual remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearance; h) proof of actual transportation of goods, cleared without payment of duty; i) links between the documents recovered during the search and actives being carried on in the factory of production; etc. 56. In the present case, there is no attempt made by the Department to substantiate the allegation of manufacture of as many as 606 ACs by the Appellant. No evidence has been produced to show that the basic raw materials required for manufacturing such a large number of ACs was procured by the Appellant. 57. For all of the aforementioned reasons, the Court is satisfied that the impugned majority order of the CESTAT on the issue of clandestine removal of 606 ACs by the Appellant without payment of duty suffers f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) as a brain child of the Learned Advocate. 10. The Hon ble Gujarat High Court in the case of CCE,C ST,Daman Vs Nissan Thermoware Pvt Ltd - 2011(266)ELT.45 (Guj) in the identical situation dismissed the appeal filed by the Revenue. In that case, the Director admitted the shortage of material used in the manufacture of goods and clandestinely removed without payment of duty. It has been observed that there is no evidence to indicate clandestine manufacture and removal of goods except shortage of raw material and statement of the Director of the Appellant Company and the Tribunal rightly given the benefit to the assessee. In the case of CCE vs Saakeen Alloys Pvt Ltd - 2014(308)ELT.655 (Guj.) the Hon ble Gujarat High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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