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2017 (1) TMI 493 - CESTAT NEW DELHI

2017 (1) TMI 493 - CESTAT NEW DELHI - TMI - Clandestine removal - MS Ingots - demand of duty, interest and penalty - the case of the Revenue is based on the note book recovered from the possession of Shri Sarat Kumar Das (Supervisor of Shri Purna Ramdas Labour Contractor) and the various statements. - Held that: - No such evidences to the above effect has been brought by the Revenue on record therefore, the demand is not sustainable against the appellant alleging clandestine removal. Moreove .....

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t. - E/2684, 2685 & 2686/2008-EX [DB] - 50040-50042/2016-EX [DB] - Dated:- 2-1-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) Sh. K.K. Anand, Ld. Advocate for the appellant Sh. R.K. Manjhi, Ld. AR for the respondent ORDER Per Ashok Jindal: 1. The appellants are in appeal against the impugned order where in demand of duty has been confirmed on the allegation of clandestine clearance of finished goods along with the interest and penalty is on all the appellant .....

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g the search one note book was found in the dickey of Hero Honda Motor cycle owned by Shri Sarat Kumar Das (the supervisory of labour contractor of the appellant, Shri Purna Ramdas ). The statement of Shri Sarat Kumar Das was also recorded who stated that the note book contains the details of loading and unloading of goods of the appellant. Thereafter, a statement of two transporters were recorded who stated that they were transporting 250-300 MT per month from the factory of the appellant to va .....

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ent to M/s. Super Steel Rolling Mills. Statement of Shri Purna Ramdas was also recorded who stated that he is engaged in delivery of raw material and removing slay from ingots on contract basis and 15 labourers were employed in the factory of the appellant. Statement of Shri Saleem Khan was also recorded. Thereafter Shri Sarat Kumar Das retracted his statement by way of affidavit of 25.07.2003. Statement of Shri Sunil Agarwal authorized signatory was also recorded. After the investigation, a Sho .....

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nd the note book recovered from his custody. He submits that Shri Sarat Kumar Das has retracted his statement within 48 hour through a duly sworn affidavit before notary public. The said affidavit was on record and the veracity of truthfulness of the affidavit has not been tested by the adjudicating authority, therefore, the affidavit filed by Shri Sarat Kumar Das is having evidential value and the same cannot be brushed aside in the light of the decision of the Hon ble Apex Court in the case of .....

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he said note book did not pertain to the payment of wages relating to appellant No. 1 only. He further submitted that the note book contains the names of other two manufactures located in the same area apart from the appellant namely M/s. Bhiwani Metals and Bhiwani Casting which shows that the said note book did not contain exclusively entries pertain to the appellant. He further submitted that the transporters made the statement that they are transporting roughly 250-300 MT of MS Ingots per mon .....

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rther submitted that there were allegations in the Show Cause Notice that the appellant has received sponge iron and scrap during the said period but there were no efforts were made to ascertain the facts from whom the said goods were received and how the payments were made to the suppliers of these goods. He further submitted that it is alleged that as per the note book the appellant had cleared a quantity of 1943.044 MT of non-alloy steel on payment of duty. Infact, the appellant had cleared t .....

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ring the relevant period but no such evidence is available for the use of such huge quantitys of electricity by the appellant. He further submitted that the department conducted pilot experiments in that factory twice to find out per unit consumption for 1 MT of MS ingots which were found to be in order, the said pattern of electricity consumption was not relied upon by the adjudicating authority. The weighbridge where the goods manufacture by the appellant were never examined to find out the cl .....

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hand Ld. AR submitted the impugned order that after thorough examination of the evidences place before the adjudicating authority the charge of clandestine goods have stand proved. 5. Heard the parties considered submissions. 6. On the careful considerations and submissions of both the sides we find that the case of the Revenue is based on the note book recovered from the possession of Shri Sarat Kumar Das (Supervisor of Shri Purna Ramdas Labour Contractor) and the various statements. 7. We have .....

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erein Hon ble Apex Court observed as under: The cash book of the appellants was accepted and the entries therein were not challenged. No further documents of vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party. The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Income-Tax Officer, who was present at the hearing of the .....

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a note book has been recovered from the Motor Cycle of Shri Sarat Kumar Das and on the basis of entries made in that note book, the demand has been confirmed holding that the entries in the note book pertains to the appellant. Some of the extract of the note book has been produced by the appellant before us and on being physical examination of the said note book, we find that it bears the name of M/s. Bhiwani Casting and Bhiwani Metals apart from the entries pertains to the appellant. But no eff .....

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so take note of the fact that during the course of investigation, some shortage of finished goods were found for which duty works out to ₹ 40,568 and the same has been admitted therefore, the demand on that account is confirmed along with the interest and equivalent amount of penalty is also imposed on M/s Bhiwani Moulders Pvt. Ltd. 10. Rest of the demand is based on the note book and statement of Shri Sarat Kumar Das and transporters etc. But as discussed above, the contents of the note b .....

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r: 22. The clandestine manufacture and removal of excisable goods is to be proved by tangible, direct, affirmative and incontrovertible evidences relating to: i. Receipt of raw material of inside the factory premises, and non-accountal thereof in the statutory records. ii. Utilization of such raw material for clandestine manufacture of finished goods; iii. Manufacture of finished goods with reference to installed capacity, consumption of electricity, labour employed and payment made to them, pac .....

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