TMI Blog2016 (7) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... eved altogether of burden of producing some credible evidence in respect of the facts in issue. In the case in hand, admittedly the Revenue has not brought any tangible evidence to discharge its burden of proof of clandestine removal of goods. It is an admitted fact on record that the Department has not carried out any physical verification of alleged shortage in stock and the same was based on eye estimation only. Thus, in absence of actual physical weighment of stock of finished goods, the allegation of shortage, in my considered view, is not sustainable. Demand set aside - Decided in favor of assessee. - Excise Appeal No. E/52449, 52293, 52294/2015-[SM] - Final Order No. 52473-52475 /2016 - Dated:- 1-7-2016 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) Mr. Kamal Jeet Singh, Advocate for the Appellant Mr. Vaibhav Bhatnagar, (DR) for the Respondent ORDER Per S.K. Mohanty: These appeals are directed against the impugned order dated 31.03.2015 passed by the ld. Commissioner of Central Excise, Raipur whereby a demand of Central Excise duty of ₹ 49,33,696/- has been confirmed and equal amount of penalty has been imposed on M/s Shree Nakoda Ispat Ltd. (f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photocopies were not recovered during the search from the premises of the appellant company, buyers of the appellant company, directors of the appellant company, any transporters or employees of the appellant company. That the person from whom these photocopies have been received was not identified and was not produced for cross-examination to ascertain the origin and authenticity of these photocopies. That the originals of these four photocopies of invoices were not produced for verification/comparison to ascertain whether photocopies were genuine and true copies of the originals. To support its submission that photocopies are not admissible as evidence in the absence of originals thereof, the appellant has relied on the following decisions rendered by the judicial forums:- (a) J. Yashoda Vs. K. Shobha Rani - 2007 (212) ELT 458 (SC) (b) Collector Vs. East Punjab Traders - 1997 (87) ELT 11 (SC) (c) Truwoods Pvt. Ltd. Vs. CC - 2005 (186) ELT 135 (CESTAT) (d) Indian Optics Pvt. Ltd. Vs. Commr. - 2000 (123) ELT 1022 (CESTAT) (e) South Indian Television (P) Ltd. Vs. CC - 2001 (136) ELT 243 (CESTAT) 3.2 Further, to support its stand that duty demand ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be sustained based on the alleged loose sheet of papers. 3.4 As regards the findings in the impugned order on 26 nos. of gate pass books resumed by the Department officers, the submissions of the appellant are that the gate passes are for clearance of Dolachar only. That the handwriting on the reverse of those gate passes is not of any employees of the appellant's company. The person who has written on the reverse of the gate passes has not been identified and questioned. The security guards of the appellants unit who allow the goods to leave the factory premises after verifying with the gate passes have also not been questioned and no confirmation has been obtained from them regarding the description of the goods removed on those alleged gate passes. The labourers who have loaded the goods into the vehicles have also not been questioned. There is no allegation in the show cause notice that the appellant has shown higher percentage of production of Dolachar vis-`-vis other finished goods. In the absence of these evidences, the allegation that the appellant has removed sponge iron fines, sponge iron lumps and M.S. Ingots on those gate passes is not sustainable. 3.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant and that no confirmation has been obtained from the alleged buyers regarding receipt of the goods in question. Since, the appellant is contesting to the fact that no Sponge Iron Fines were removed under the cover of alleged invoices and that the originals of the photocopies were not produced for verification/comparison to ascertain whether photocopies were genuine and true copies of the originals, in my opinion, a photocopy, merely as a piece of paper, cannot be considered as having any evidentiary value. In this context, Section 63 of the Evidence Act, 1872 provides that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily explained. The Hon'ble Supreme Court in the case of J. Yashoda - Vs. - K. Shobha Rani, reported in 2007 (212) ELT 458 (S.C.) have held that secondary evidence cannot be admitted without non-production of the original one. Thus, it is imperative that the contents of photocopies should be compared with the contents of their respective originals. In absence of the original documents, the photocopies, not being even secondary evidence, are not admissible in evidence. No enquiries have been conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h July' 2011 recovered from the premises of the appellant company, wherein Sponge Iron Fines, Sponge Iron Lumps and MS Ingots were allegedly shown as removed to various buyers namely M/s Hanuman Ispat Pvt. Ltd., Raipur, M/s Balaji Loha Pvt. Ltd., Raipur, M/s Roop Laxmi Industries India Pvt. Ltd., Raipur etc. It is an admitted fact on record that the Department had not produced the original copies of the loose sheets to the appellant for verification, that the name and identity of the person who has prepared those sheets were not disclosed, that the name of the appellant has not been mentioned in the said sheets and that no specific confirmation has been obtained from the alleged buyers or transporters of goods that the appellant had supplied the goods as per information contained in those loose sheet of papers. Further, there is no evidence available on record that the goods as per those sheets were seized/detained by the Central Excise Department or any other Government agencies. Thus, in absence of any cogent evidence of clearance of excisable goods as reflected in the alleged loose sheets, the charges of clandestine removal with intent to evade payment of duty, in my opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in those papers and no confirmation has been obtained from the transporters that they have transported sponge iron fines and M.S. ingots on the dates mentioned therein from the unit of the appellant to the premises of the named consignees. Hence, in my considered view, no reliance can be placed on these loose papers to confirm the duty demand. 10. As regards the alleged production reports referred to in the impugned order, I find that the adjudicating authority has not taken into consideration the facts stated by Shri Anant Dave in his statement dated 15.02.2013, wherein he has stated that the production slips are not the official records and do not reflect the actual production of the appellant's unit. Further, the Department has also not identified and questioned the person, who has prepared the production slips regarding the authenticity of the contents therein. Thus, in absence of any corroborative evidence on record like illicit procurement of raw material, production capacity of the appellant, transportation of un-accounted for raw material/finished goods, name of alleged buyers etc., the allegation of clandestine manufacture and removal of the finished goods cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents produced in defense cannot be considered as reliable evidence for adjudication of the dispute. Further, this Tribunal in the case of Centurian Laboratories - Vs. - Commissioner of Central Excise, Vadodara, 2013 (293) ELT 689 (Tri.-Ahmd.) has held that mere confessional statement recorded earlier is not enough to conclude that the assessee is engaged in clandestine removal of goods. In this case, summarily rejection of subsequent statement/ submissions/affidavits by the adjudicating authority is not in consonance with law. 13. From the foregoing discussions, it became apparent that the department has not led any corroborative evidence to support the allegations of clandestine clearance. There is no evidence regarding procurement of raw material, transportation of raw material, payment for unaccounted raw material and its transportation to sustain the allegation of clandestine manufacture and removal by the appellant. No evidence has been led by the Department to show that the appellant had sufficient production capacity to produce the quantity of goods alleged to have been produced clandestinely. There is no allegation that the appellant has shown excess production of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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