TMI Blog2017 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... k from the appellant's factory, then why there was no attempt to record statement of the said person. The appellant disowned the seized Note-book. There is no material available on record that the said Note-book was maintained by Shri Arun Kumar Das and no further investigation was conducted - appeal allowed - decided in favor of appellant. - Ex. Appeal No. 582/08 & CO-111/08 - F/76233/2017 - Dated:- 7-7-2017 - Shri P. K. Choudhary, Judicial Member Shri B. N. Chattopadhyay, Consultant for the Appellant Shri S. S. Chattopadhyay, Supdt. (A.R.) for the Revenue ORDER Per: Shri P. K. Choudhary The present appeal is filed by the appellant against the impugned Order-in-Appeal No.13/Bol/2008 dated 21.07.08 passed by Commr. of Central Excise (Appeals), Kolkata. 2. Briefly stated the facts of the case are that the appellant is manufacturer of Pig Iron classifiable under Chapter 72 of the First Schedule to the Central Excise Tariff Act, 1985. On 18.02.2004, the Central Excise Officers of Anti Evasion Unit, Bolpur Commissionerate, visited the appellant's factory and seized some incriminating documents appears to be relating to production of Pig Iron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant from the very beginning disowned the said note-book. It is noticed that the handwriting of the said note-book is of Shri Arun Kumar Das, as claimed by the visiting Central Excise Officers, could have been examined by the handwriting expert, which was not done. Further, the Commissioner (Appeals) observed that Shri Arun Kumar Das was summoned under Section 14 of the Central Excise Act, 1944, to give evidence, but he did not turn up. It is seen from the order of the Commissioner (Appeals) that Shri Arun Kumar Das was summoned by Summon dated 21.05.2004 and thereafter, neither any further summon was issued nor any proceeding was initiated against the said person under the provisions of law. It is not clear as the investigating officer recovered the said Note-book from the appellant's factory, then why there was no attempt to record statement of the said person. Hence, there is force in the submission of the ld. A.R. 6.3 The Tribunal consistently viewed that the charge of clandestine removal cannot be established merely on the basis of the entries in the Note-book relating to goods clandestinely removed without payment of duty. 6.4 In the case of Gupta S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand Silk Mills Pvt. Ltd. v. CCE, 2005 (184) E.L.T. 263, Umiya Chem v. CCE, 2008 (7) LCX 0602 - 2009 (239) E.L.T . 429 and Ureka Polymers v. CCE, 2001 (127) E.L.T. 618. These decisions, according to the ld. Senior Advocate, are not contrary to the decisions cited by him for Nova. In the case of Gulabchand v. CCE, the vehicle was intercepted carrying non duty paid goods. Unaccounted duty paid goods were found in the dealers premises and they gave statements to the effect that the goods were supplied with bills and without bills. This was not a case where there was no evidence of clandestine manufacture and clearance. In the Umiya Chem (supra) during the course of search, shortage of finished goods was noticed when compared with RG-23A Part I register. The partner of the firm had also admitted illicit clearance. Broker's statement gave details of commissions received against sale. There was, therefore, evidence regarding illicit clearance. In the third case of Ureka Polymers, the department had obtained the statement of raw material suppliers and also of finished goods dealers. Since no regular records were maintained by the assessee to show electricity consumption, as to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he search and activities being carried on in the factory of production; etc. Needless to say, a precise enumeration of all situations in which one could hold with activity that there have been clandestine manufacture and clearances, would not be possible. As held by this Tribunal and Superior Courts, it would depend on the facts of each case. What one could, however, say with some certainty is that inferences cannot be drawn about such clearances merely on the basis of note books or diaries privately maintained or on mere statements of some persons, may even be responsible officials of the manufacturer or even of its Directors/partners who are not even permitted to be cross-examined, as in the present case, without one or more of the evidences referred to above being present. In fact, this Bench has considered some of the case law on the subject in Centurian Laboratories v. CCE, Vadodara, 2013 (293) E.L.T. 689 . It would appear that the decision, though rendered on 3-5-2013, was reported in the issue of the E.L.T. dated 29-7-2013, when the present case was being argued before us, perhaps, not available to the parties. However, we have, in that decision, applied the law, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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