TMI Blog2018 (2) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods by the main appellant and consequent penalty on the Director does not stand scrutiny of the law and the demand needs to be set aside. Since the demand is set aside, interest liability and penalty on the main appellant as well on the individual does not survive. Appeal allowed - decided in favor of assessee. - Central Excise Appeal No. 1356, 1357 of 2010-SM, Central Excise Appeal No. 1365 of 2010-SM - - - Dated:- 8-1-2018 - Mr. M.V. Ravindran, Member (Judicial) Shri Anand Mishra, Advocate for the Appellant-Assessee Shri L.Patra, A.R. for the Revenue ORDER Per M.V. Ravindran These three appeals are directed against the Order-in-Appeal No. 332-334/SRT-I/2010 dated 28.5.2010 passed by the Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed penalties but extended the benefit of discharge of penalty @ 25% of the confirmed demand to the main appellant. Revenue is aggrieved by such benefit extended by the first appellate authority. 3. Ld. Counsel for the Appellant-Assessee took the Bench through the entire case records and drew my attention to the statements of various individual. He would more specifically draw my attention to the private diary which has been recovered and the entries thereof was sought to be interpreted as clandestine removal of the goods. He submits that author of the diary was not summoned nor his records nor his statement was recorded. He would submit that said diary has been wrongly interpreted by the authorities as the diary is showing entries of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by Revenue after condoning the delay in filing the Appeal. He would also rely on the decision of the Hon ble Gujarat High Court in the case of Suntrek Aluminium P. Ltd. vs. C.C.E.C.Ex S.Tax, Rajkot 2013 (288) ELT 500 (Guj.) for the same proposition. 4. Ld. A.R. for the Revenue refers to the entries made in the private booklet seized at the premises and the details thereof. He would submit that this booklet was produced before the Director of the company and he admitted that these entries indicate clandestine removal of the goods. He would submit that the Director was specifically asked about the entries made on 15.9.2001 which is accepted by the authorised signatory as clandestine removal; Panchnama clearly indicates that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e booklet that entries did not indicate that they were of 2001. The dates indicated wherein only states the date and month. On deeper perusal of the statement recorded of all the individuals i.e. Shri Sharma, I find that he has not admitted that this booklet is pertaining to the year 2001. He has only stated that this booklet was maintained by one of the individuals who was relative of the Director. 7. I find that Director of the company Shri Vimal Kumar Agarwal was not examined and his statement was not relied upon by the authorities in the entire proceeding though there is a mention that Shri Vimal Kumar Agarwal did not turn up despite being summoned. I find that statement of Shri Sharma who is authorised signatory of the main appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any evidence of all the purchasers possessed statement the statement of transporters statement. I find strong force in the submission made by the ld. Counsel that the ratio of the judgment of the Hon ble Gujarat High Court in the case of Saakeen Alloys and Suntrek would clearly apply in the case in hand. Respectfully following the same, I hold that the charge of clandestine removal of the goods by the main appellant and consequent penalty on the Director does not stand scrutiny of the law and the demand needs to be set aside. Since the demand is set aside, interest liability and penalty on the main appellant as well on the individual does not survive. The appeal filed by Revenue also needs to be rejected as the entire demand is set aside a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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