TMI Blog2018 (3) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... on the available records and evidences; I am of the view that the findings recorded therein cannot be disturbed at this juncture, in absence of any plausible evidence being produced by Revenue to sustain the charges of clandestine removal. Appeal dismissed - decided against Revenue. - E/2073/2007-EX [SM] - A/50891/2018 - Dated:- 5-3-2018 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant: Mr. G.R. Singh, D.R. Present for the Respondent: Mr. A.K. Jain, Advocate ORDER PER: S.K. MOHANTY Brief facts of the case, leading to this appeal, are as follows:- 1.1 The appellant was engaged in the manufacture of excisable goods such as SIR brand Gutkha, Pan Masala and Metha Masala. The officers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or delivering of the same to the trading firms, namely M/s. Vijay General Stores, M/s. Sanjay Trading Company and M/s. Radhey Tobacco Company. Enquiries were conducted with the said transporters and on the basis of consignment Notes indicating the names of those three traders as consignors and on the basis of statements of Shri Vijay Jain, Proprietor and employees of the said transporters, it was alleged that the goods transported under those consignment Notes were Gutkha , manufactured and cleared clandestinely without payment of duty by the Appellant s firm. Accordingly, the show cause notice dated 19.02.2004 was issued, seeking confiscation of the seized goods, recovery of Central Excise duty on the goods transported under various Consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods without invoice/bill and without payment of duty was corroborated with the submissions made by Shri Vijay Kumar Jain, Proprietor of the respondent s firm. He further submitted that the driver of the vehicle Shri Achey Lal has never retracted his statement regarding carriage of goods in past without any invoice/bill and without payment of duty from the premises of the respondent. He also submitted that the statement furnished by Shri Vijay Kumar Jain has not been officially retracted and the letters sent through post on 25.08.2003, 03.12.2003 18.12.2003 cannot be considered as retracted statement. Thus, he submitted that based on reliable facts with documentary evidences produced by the Department, clandestine removal of goods is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I for necessary approval. In the said note-sheet, the Commissioner has approved for filing of appeal, with the observation that Good analysis. I agree with the inference that appeal need to be filed . The said approval in the said note-sheet was placed before the other Commissioner, who has endorsed the noting recorded in the note-sheet. Thus, it is evident that the proper Committee was constituted for the purpose of filing appeal before the Tribunal. Therefore, I do not find any merits in the submissions of the ld. Advocate for the Respondent that the Committee was not properly constituted, deciding for contesting the impugned order before the Tribunal. In this context, I find that the Hon ble Delhi High Court in the case of Japan Air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Authority had not considered the retractions made by the Respondent vide its letter dated 25.08.2003, 03.12.2003 and 18.12.2003, sent through the Postal Department. Further, no comments/reply to the communication dated 20.06.2006 of the Commissioner (Appeals) in this regard was furnished by the Original Authority. Thus, the Commissioner (Appeals) has rightly held that the retractions having been made on the very next dates of making of the statements, the same cannot be treated as voluntary and therefore, the statements have no evidential value for establishing the charge of clandestine manufacture. Further, I also find that the submissions made by Shri Achey Lal, driver pursuant to the cross-examination by the Advocate for the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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