TMI Blog2015 (11) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... lt to accept the clandestine removal of the goods on the basis of the said chit, without any corroborative evidence. The Commissioner (Appeals) has also examined the case in the context of that no statement was recorded of the Dyeing Master or Printing Master. - there was a shortage of goods worth ₹ 1 Crore. - No reason to interfere the order of the Commissioner (Appeals) - Decided against Revenue. - Appeal No.E/633,634/2007-SM; E/CROSS/97/2007 - Order No. A/11403-11404/2015 - Dated:- 9-10-2015 - Mr. P.K. Das, Member (Judicial) For the Petitioner : Shri Jitendra Nair, Authorised Representative For the Respondent: Shri P.M. Dave, Advocate Shri N.J. Gheewala, Consultant ORDER Per: P.K. Das Revenue filed these appeals against the order of the Commissioner (Appeals), whereby the Adjudication order was set aside and the appeals filed by the Respondents were allowed with consequential relief, if any, as per law. 2. The relevant facts of the case, in brief, are that M/s Mahesh Dyeing Printing Mills (P) Ltd (Respondent Company) were engaged in the processing involving dyeing and printing of Man Made Fabrics (MMF) on job work basis and cleared on pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lini Steels Pvt.Ltd Vs CCE Hyderabad-2011 (269) ELT 485 (A.P.) iii) Chandan Steel Ltd Vs CCE Vapi-2014 (312) ELT 479 (Tri-Ahmd.) iv) Ganapati Rollings Pvt.Ltd. Vs CCE (Appeals), New Delhi-2015 (315) ELT 91 (Tri-Del.) 4. On the other hand, the learned Advocate appearing on behalf of the Respondents submit that the Commissioner (Appeals) proceeded on the basis of the statement and the retraction of the statements and overall facts and circumstances of the case, as there is no material available except one chit recovered from the pocket of the Excise Supervisor. It is submitted that the Central Excise Officers seized 73 files as recorded in the Panchnama and no material was available of clandestine removal of the goods. It is further submitted that there is no discrepancy during the stock verification, which primarily indicate that there is no clandestine removal of the goods. He particularly drew the attention of the Bench to the grounds of appeal filed by the Revenue. It is submitted that the Respondent filed retraction of statement to the investigating agency, which is not disputed by the Revenue. He relied upon the decision of Hon'ble High Court and Tribunal as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of statement as observed by the Commissioner (Appeals) and it is an after-thought. But, it is revealed from the impugned order that statements were not retracted within a short period. The learned Advocate on behalf of the Respondent submitted that they have filed the retraction of statement to the investigating agency. So, I find force in the submission of the learned Advocate on behalf of the Respondent on this issue. 7. The learned Authorised Representative on behalf of the Revenue contended that the Commissioner (Appeals) erroneously proceeded on the sole reliance has been placed on the chit recovered from the possession of Excise Supervisor which is not a sufficient evidence to establish the clandestine removal of the goods, as no enquiry regarding the supplier of material etc had been conducted, nor the statement of any of the Dyeing Master of Printing Master were recorded. In my view, the important issue is that charge was framed against the Respondent during the period from 01.10.2003 to 17.10.2003 within 17/18 dates, they have clandestinely removed the MMF to the quantity of 1107428 L.Mtrs. from their factory. It is significant to note that the very next day the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the charge of clandestine removal has to be proved with the help of tangible, concrete, direct and authoritative evidence. Unauthenticated entries in a paper written by a lower staff are not dependable evidence to establish clandestine removal. The allegation of clandestine removal in the present case involves a quantity of 1107428 L.Mtrs of MMF (P), which is alleged to have been manufactured and cleared within a short span of 17/18 days. Definitely, it is a case of evasion of serious in nature and should have been investigated properly and at least sources of receipt of raw material, the recipients of the processed fabrics, and the amount of money which flowed into should have been diged out. For want of such an enquiry, the Revenue has not brought on record an important factor regarding the receipt of goods by the persons/firms whom the same were said to have been dispatched from the factory of the Appellants without payment of duty. 8. It is well settled by the various decisions of the Hon'ble High Court and the Tribunal that the confessional statement cannot form a foundation for levying Excise duty, much less the retracted statement. In the case of Saakeen All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the retracted statements. To the extent there existed substantiating material, Tribunal has sustained the levy. No perversity could be pointed out in the approach and treatment to the facts. 8.1 In the case of Suntrek Aluminum P. Ltd Vs CC, Rajkot (supra), the Honble Gujarat High Court, observed that confessional statement of the Director of the Assessee Company giving impression that it was recorded by force and subsequently retracted within reasonable time. In that case, confession of clandestine removal of the goods was in realm of proposition/supposition and not sustainable. 8.2 In the case of Vishwa Traders Pvt. Ltd (supra), the Honble Gujarat High Court, observed that on the date of visit of Revenue Official, stock of raw material and finished goods were tallying with the recorded goods. There is no material available to show that unrecorded raw material were purchased or consumed or that the Assessee manufactured or removed the goods clandestinely, on which duty was payable. 8.3 In the case of Omkar Textile Pvt. Ltd (supra), the Hon'ble Gujarat High Court observed that the evidence to support the clandestine removal except statement of Director, subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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