TMI Blog2017 (1) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and same were found in order therefore, Revenue has failed to establish how the goods were manufactured in the factory of the appellants - As there is no positive evidence has been produced by the Revenue to allege clandestine removal goods, therefore the impugned order is not sustainable. Appeal allowed - decided in favor of appellant. - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aware of in such diaries maintained by Shri Sarat Kumar Das and also does not have any knowledge of any consignment to sent 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 Show Cause Notice was issued to the appellants to demand duty on the ground of clandestine removal of MS Ingots from factory along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 month but never said that in respect of consignments mentioned the truck numbers were appearing in the note book. He further submitted that no enquiries were made from the customers of the appellant except M/s. Super Steel Rolling Mills for whom these transporters have transported the goods. He further submitted that no statement of Production Manager or the Authorized Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority. The weighbridge where the goods manufacture by the appellant were never examined to find out the clandestine removal of goods by the appellant. Therefore, in the absence of any corroborative positive evidence apart from the note book and the statement of Sarat Kumar Das, the charge of clandestine removal of goods is not sustainable. He also submits that the Ld. Commissioner has also relied upon several statements to render adverse findings without examining the makers of said statements under Section 9 (D) of Central Excise Act. Therefore, these statements are not admissible. 4. On the other hand Ld. AR submitted the impugned order that after thorough examination of the evidences place before the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examine them with reference to the statements made by them in their affidavits. Under these circumstances it was not open to the Revenue to challenge the correctness of the cash entries or the statements made by those deponents in their affidavits. Therefore the statement of Shri Sarat Kumar Das cannot be relied upon to allege clandestine removal of the goods. 8. Further, we find that 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. reported in 2009 (237) E.L.T. 674 (Tri.-Delhi.) this Tribunal has laid down certain norms to allege clandestine removal of goods which are reproduced as under: 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, packing material used, records of security officers, discrepancy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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