TMI Blog2015 (2) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the part of the Revenue was to examine Shri Nayak and record his statement, seeking clarifications in respect of the entries. For the reasons best known to the Revenue officers, this has not been done. - The adjudicating authority had, in compliance with the said directions of the Tribunal, issued summons to various deponents of the statements, who did not appear for the same. As such, he has proceeded to examine the said statements. The adjudicating authority has recorded that the said statements of the holder of bank account, counting clerk, despatch clerk and contractor, etc., are not inculpatory in nature inasmuch as neither of the statements of the said deponents have admitted any misdeed on the part of the company. Statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Revenue and Shri T. V. Ajayan, Advocate appearing for the respondents. 3. As per facts on records, respondents are engaged in the manufacture of steel bars and rods, CTD bars and MS bullets, etc., falling under Chapter 72 of the Central Excise Tariff Act. Their factory was visited by the Central Excise Officers and various examinations were conducted. As a result, a private register marked as Register No. 7 was recovered from the respondents premises. By entertaining a view that the respondent was indulging in clandestine activities and the entries made in the Register reflected removal of their final products without payment of duty, further investigations were carried out. During the post seizure investigations, Revenue recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and rebutted if necessary. In the present case, the charges are mainly based on the Register No.7, which is a private record. It is the contention of the appellants that this record has not been maintained by the company but one Shri Nayak. Strangely, no statement has been recorded from Shri Nayak. The investigation appears to be shoddy. Even though the statements of the lorry owners Shri Imtiyaz Pasha, Mehboob Khan and Abdul Khadir Irshad has been relied, no opportunity was given to the appellant to cross-examine them. Even the cross-examination of Shri S. K. Chatterji, Counting Clerk was not allowed. Another point made by the appellant is that some of the goods were traded by M/s. Sudarshan Mercantile Corporation Pvt. Ltd. and such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Register No.7, which is a private Register, without any further investigations. He has also recorded that the author of the said Register Shri Nayak has not been contacted by the Revenue and his statement has not been recorded. He has also seen the statements of other persons which are not inculpatory in nature. He has also examined the electricity consumption and after taking into account that the high consumption was on account of installation of induction furnace, has concluded in favour of the assessee. 8. It is well settled law that the charges of clandestine removal are required to be proved by the Revenue by production of sufficient, positive and tangible evidence. The same cannot be confirmed on the basis of doubts and assump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted the fact of clandestine removal of the goods. He has merely shown his inability to clarify as to whether the entries made in the said Register were clearances on payment of duty. I find that in the absence of any statement admitting clandestine activity on the part of the company, the said statements do not further the Revenue s case. 10. Revenue s case is that the goods were being manufactured by the respondents but were being cleared under the trading invoices of the other two companies i.e., M/s. Star and Steel Hardware, M/s. Mikson Corporation and M/s. Sudarshan Mercantile Corporation. The investigations conducted by the Revenue revealed that the said companies were not in existence. The respondents have contested the said all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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