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Commissioner of Central Excise, Bolpur Versus M/s. A.T.C. International Pvt. Ltd.

2017 (11) TMI 825 - CESTAT KOLKATA

Clandestine Removal - appeal is on the sole ground that Gate Register and loose sheets showing the clinker consumption recovered from the factory are evidences to indicate that the assessee was indulging in clandestine removal - Held that: - Commissioner has rightly observed that the said two registers cannot be made the basis for arriving at adverse findings against the assessee. For establishing clandestine removal, positive evidence in the shape of procurement of raw materials, actual manufac .....

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RDER Per Mrs. Archana Wadhwa. Being aggrieved with the order passed by Commissioner(Appeals), Revenue has filed the present appeal. Nobody appeared for the respondent. I have heard Shri S.Guha, AC(AR) for the Revenue. 2. As per facts on record, the appellant is engaged in the manufacture of cement. A team of Central Excise officers belonging to the Anti-Evasion Unit, Bolpur Commissionerate, visited the factory premises of the appellant on 31.05.2000. They claim to have recovered one Gate Registe .....

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e, to explain the discrepancies, he was unable to do so. Further, in his statement dated 21.6.2000, Shri Awadhesh Singh denied any knowledge of the maintenance of any such Gate Register and the Clinker Consumption Report by the appellant. The deposition of Shri Pawan Kumar Gutgutia, director of the appellant company, was obtained and who too denied any knowledge of any such Gate Register and the Clinker Consumption Report . Investigation was further made by recording the statements of persons sa .....

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31.05.2000. It was also proposed to charge interest from the appellant as well as to impose penalty under section 11AC of the Central Excise Act, 1944, read with Rule 173Q of the erstwhile Central Excise Rules, 1944. The appellant replied to the notice denying all the allegations in the notice. These were not accepted by the lower authority and he confirmed the demand of duty amounting to ₹ 13,52,113/- and held the same payable under the provisions of section 11A(1) of the said Act. A pen .....

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actory. However, I find that there is no panchnama or any seizure memo, seizure list which would go to show that the Gate Register and the Clinker Consumption Report were seized from the factory and that too in the presence of any of the employees of the appellant. It was incumbent on the part of the officers to have drawn a seizure memo, not only with two independent witnesses but also showing the presence of the authorized representative of the appellant company at the time of recovery of thes .....

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es immense scope for suspicion and doubt, and thus these documents cannot in the eyes of law be held as genuine or reliable. I, therefore, hold that such Gate Register and the Clinker Verification Report cannot be accepted as genuine and not reliable piece of evidence. 7. Gate Register and the Clinker Verification Report can be taken as admissible evidence provided there is corroboration to what is stated in these. It has been stated by the appellant that the Department has not been able to addu .....

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naccounted cash. Had any of these corroborated the contents of the Gate Register and the Clinker Verification Report , there would have been scope to admit such documents. Whereas, on the contrary, when statements were recorded of persons who are alleged to have purchased such cement from the appellant, none of them have stated that they have purchased any cement except under proper invoices. In other words, even the buyers of the cement have denied purchasing any cement from the appellant which .....

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