TMI Blog2018 (6) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... for the cross examination or the persons who appeared for cross examination have resiled from their statements. No statement of driver of any of the vehicle was recorded to ascertain the actual place where the raw material was actually delivered. There is no corroborative evidence of receipt of any unaccounted raw material by the Appellant Unit. Neither there is any evidence of unaccounted production and its removal. Further no evidence of use of other raw material/ packing material, extra labour, payment of unaccounted wages, use of power or any evidence of production is appearing. There is no buyer of such goods nor any evidence of any consideration received by the Appellant Unit against such clearance. Clearances against alleged parallel invoice - Held that:- It is found that during the cross examination of the departmental officer on questioning regarding such parallel invoice, he stated that the copies of invoices were given to him by his seniors. There is no authentic source who has provided the copies of said parallel invoice. One of the party who allegedly received the goods under the cover of two such parallel invoice in his statements refused to have received such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 kgs to M/s RKP but the same was not found entered in books. In case of supplier Shri Subhashbhai Desaibhai Patel, Proprietor of Shreeji Tobacco Trading Co. he stated that they have consigned 10 consignments of raw tobacco on commission basis to M/s RKP. It was found that three consignments were not booked by RKP. In case of Shri Jagdishbhai Mahejibhai Patel, Proprietor of M/s Patel Rakeshkumar Jagdishblal and M/s Ami Tobacco it was found that two consignments were not accounted for. In case of Hetal Tobacco Co. statement of Shri Kantibhai Chotabhai Parekh, Manger was recorded and scrutiny of records of M/s RKP revealed that two consignments were not entered. In case of statement recorded of Shri Kantibhai Chotabhai Parekh Manager cum Accountant of M/s Hetal Tobacco and scrutiny of Form IV it was found that they had supplied eight consignments out of which five consignments were not recorded by M/s RKP. From statement of Shri Hitesh Niranjanbhai Brambhat, Proprietor of M/s V. Laxmi Tobacco and scrutiny of their records and on comparison of same with records of RKP it revealed that one consignment was not recorded by RKP. In case of goods supplied by M/s Jai bholenath and stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... layed effective role in abetting the clandestine activities and thus liable for penalties. Penalties were also proposed upon dealers of RKP who has supposedly received Zarda under Parallel invoice from M/s RKP. After cross examination of some of the suppliers, dealer, one panch witness and Dept. officer who appeared for cross examination and after reduction of demand due to duplication of figures, the adjudicating authority confirmed the demand of ₹ 1,38,63,850/- alongwith interest and penalty. Penalty against the co-appellants was also ordered. Hence the present appeals. 2. Shri V. M. Doiphode, ld. Counsel appearing for the Appellants submits that the demand has been confirmed without any basis. That the demand was raised upon the statement of 12 suppliers out of which only 4 could be presented for cross examination who deposed that they did not receive any documents evidencing supply of goods to the Appellant M/s RKP nor do they have any document. One of the supplier even stated that he could not read his statement written in Hindi. That Shri Sanjaybhai Darbar one of the supplier confirmed only of 2 consignments though in his statements he had stated that 7 consignments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of any of the drivers of the Truck was recorded to verify the facts of the transportation. During stock verification of raw material at the factory of Appellant no excess stock was found which can show that the Appellant procured any excess raw material. The physical stock of finished goods was found exactly matching with stock recorded in books. There is no evidence of excess production of finished goods in the factory, excess deployment of labour and wages distribution, unaccounted procurement of packing material. He relies upon the Tribunal s order in case of Arya Fibers Pvt. Ltd. 2014 (311) ELT 529 (TRI) and Appellant s own case as reported as R.K. Patel Co. Vs. CCU CE 2008 (227) ELT 558 (TRI) as upheld by the Hon ble High Court vide Order dt. 06.10.2017 in Appeal No. 130 of 2006. He also relies upon judgment dt. 11.04.2017 of Hon ble High Court of Delhi in case of CCE, Delhi Vs. Balaji Perfumes in CEAC No. 11/2016. He also submits that even though they have expressely invited the attention of the adjudicating authority towards various reasons of wrong quantification of demand due to accounting of goods and quantum of wastage the same was not considered. He submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was booked against the Appellant towards alleged evasion of duty on the ground of illegal and unaccounted receipt of raw material. The major supplier in said proceedings and in the present proceedings was Shri Yogeshbhai Chimanbhai Patel. The Tribunal in its findings held as under : 41. Further, he relied upon the following : (i) M/s. Chariot Cement Co. v. Commissioner of Customs Central Excise, BBSR-II - 2003 (161) E.L.T. 598 (Tri.-Calcutta). (ii) M/s. Durga Trading Co. v. Commissioner of Central Excise, Lucknow - 2003 (162) E.L.T. 245 (Tri.-Delhi). (iii) M/s. Kothari Products Ltd. Ors. v. Commissioner of Central Excise, Kanpur Commissioner of C. Ex., Kanpur v. M/s. Kothari Products Ltd. - 2003 (159) E.L.T. 1187 (Tri.) = 1999 (31) RLT 67 (CEGAT). (iv) M/s. Saheli Synthetics Pvt. Ltd. v. Collector of C. Ex., Vadodara - 1999 (113) E.L.T. 1000 (Tri.). (v) M/s. Gurpreet Ruber Industries v. Collector of C. Ex., Cochin - 2002 (146) E.L.T. 248 (S.C.). In all the above cases, it is settled legal position that for establishing clandestine clearance, there has to be a very strong evidence. In the instant case, the evidence let in by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty raised by the ld. counsel in the appeal and during the course of hearing. 45. Accordingly, we set aside the impugned order as far as these appellants are concerned and allow the appeals with consequential relief, if any. The above order was upheld by the Hon ble High Court in Central Excise Appeal No. 130/2006 vide order dt. 06.10.2017. the Hon ble Court held as under : 11. The revenue was required to prove their case by cogent and positive evidence. It had to prove receipt of raw materials and unaccounted production. This they failed to do. References are made in paragraph 10 of the impugned order to statements of Shashikantbhai Bhailalbhai Patel, Kantibhai Maganbhai Patel and Ravjibhai Ashabhai Patel on multiple occasions. The statement of Shashikantbhai was first recorded on 6th February, 1998 at Anand by local Central Excise Officers wherein he stated that approximately two trucks were supplied in 1995 to M/s. R.K. Patel Co. In the second statement recorded on 25th May, 1998, he contended that two trucks have been supplied to the respondent and other entities such as M/s. R.K. Patel Tobacco Trading Co. In his third statement recorded on 20th July, 1998 at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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