TMI Blog2017 (10) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the basis of average consumption of inputs and inculpatory statement of the appellant. Revenue has failed to come with any positive evidence on record to allege clandestine removal of goods - the charge of clandestine removal of goods is not sustainable - appeal allowed - decided in favor of appellant. - E/2897-2900/2009-SM - A/56767-56770/2017-SM[BR] - Dated:- 30-8-2017 - Mr. Ashok Jindal, Member (Judicial) Shri Prem Ranjan, Advocate - for the appellant Shri K. Poddar, A.R. - for the respondent ORDER Per: Ashok Jindal The appellants are in appeal against the impugned order wherein the demand has been confirmed on account of clandestine removal of the goods. 2. The facts of the case are that the appellant is engaged in manufacture of tooth brushes. On 21.2.2004, Anti Evasion Deptt. visited the factory of the appellants and physical stock taking was conducted wherein finished goods/raw material were found recorded as per the statutory records. The samples of bristles of tooth brushes were taken and average weight of bristles used in tooth brushes was taken after weighing the bristles used in five brushes. The average weight per brush was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of the appellants. 7. A similar issue came up before this Tribunal in the case of Davinder Sandhu Impex Ltd. (supra), wherein this Tribunal observed as under : 6. In this case during the course of investigation, the statement was recorded and the statement given by Shri Baldev Singh, Managing Director admits that there is a shortage of 10 to 15% for manufacturing the final product and it is also admitted by Shri Baldev Singh that they have cleared certain goods without payment of duty, but the said statement was retracted by Shri Baldev Singh who claims to be that same has been recorded under influence and duress, thereafter, another statement was recorded on 3 rd May, 2005 which was also retracted on the same day, where also same statement recorded which is a typed one and it is the claim of the Revenue that same has been typed by Shri Dinesh Kumar (who is an employee of the appellant) in the office of the Department. To that effect, Shri Dinesh Kumar filed an affidavit on 1 st August, 2006 that the statement has been typed by the officers of the Department themselves not by him and that said affidavit has not been controverted. Further, the cross-examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste is more than that. Coming to such a conclusion, a demand was raised on all the appellants . 7. In these set of facts, this Tribunal has observed as under :- 5.1 As regards the merits of the case, we find that the impugned orders have proceeded on the ground that the appellants had shown excess percentage of waste and by showing such excess percentage of waste, they had cleared the HDPE/PP granules clandestinely without reversal of Cenvat credit or without paying any duty. It is undisputed that there is no evidence of any sought whatsoever in all these appeals, as to who is the purchaser of so-called clandestinely removed HDPE/PP granules. The entire Orders-in-Original only proceeds on the ground that the appellants could not have manufactured HDPE/PP sacks or fabrics by using non-standard grades of HDPE granules. We cannot accept the proposition as mere assumptions and presumptions, cannot be the basis for coming to a conclusion that there was clandestine removal. It is now a well settled law that mere presumptions and assumptions cannot be the basis for fastening the charge of allegation of clandestine removal . 8. We further find that in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent evidences, which is fully absent in the present case. As such, I am of the view that in the light of various decisions relied upon by the appellant in their memo appeal, such statements which are inconsistent with the documentary evidences, only raises a doubt, but cannot take the place of an evidence. As such, I am of the view that the impugned order is required to be set aside in totality and the appeal is required to be allowed. 16 . On perusal of the Order-in-Original and Order-inAppeal, I find that the appellant has taken a consistent stand before both the lower authorities that the burden of proof as regards allegation of clandestine removal is on the Department. It is seen from the records that the entire charge of clandestine removal of the finished goods is based upon the theoretical working of calculating the consumption of inputs and presumptive clearance of the finished goods from the factory premises of the appellant. The assumptions which have been considered by the Revenue authorities are totally faulty inasmuch as that the charge of clandestine removal is first to be established based upon the clandestine manufacture and removal of the goods. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has observed as under :- 7. As can be noted from the decision of the Tribunal, it has extensively dealt with the entire factual matrix presented before it. The Tribunal rightly concluded that in the case of clandestine removal of excisable goods, there needs to be positive evidences for establishing the evasion, though contended by the Revenue. In absence of any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consumption of power like electricity, seizure of cash, etc., the Tribunal noted and held that there was nothing to bank upon except the bare confessional statements of the proprietor and of some of the persons connected with the manufacturing activities and such statements were retracted within no time of their recording. The Tribunal also noted the fact that the requisite opportunity of cross-examination was also not made available so as to bring to the fore the true picture and therefore, it concluded against the Revenue observing that not permitting the cross-examination of a person in-charge of records of M/s. Sunrise Enterprises and absence of other cogent and positive evidences, would not permit it to sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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