TMI Blog2018 (8) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... it is well settled law that clandestine removal allegations cannot be upheld on the basis of the sole statement of one of the employees, unless the same are corroborated by other independent evidences. The Hon’ble Allahabad High Court in the case of Continental Cement Company V/s Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] has held that clandestine removal is required to be proved by clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, transportation, the mode and flow back of funds. Such charge is a serious charge required to be proved by Revenue by tangible and sufficient evidences and mere statement of some of the buyers given on the basis of their memories are insuffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On being questioned, Shri Jagdish Prasad, Authorised Signatory, informed the officers that they were maintaining the Stock Position of the finished goods on the Computer installed in their factory on routine basis, and entries in RG-1 Registered were made in 10-15 days period. They also produced a printout of Stock position of the finished goods for the intervening period from 01.05.2015 to 14.05.2015 depicting the day-wise production and clearances of the finished goods. Physical stock taking of the finished goods was also undertaken by the visiting officers and it was found that there was shortage of Aluminium Profiles (other than hollow) as also of Aluminium Profiles (hollow) involving duty of ₹ 5,01,177/- and of ₹ 58,91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed confirmation of duty to the extent of ₹ 5,60,088.00/-(five lakh sixty thousand and eighty eight) in respect of shortages detected in the stock by the visiting officers. Proposal to impose penalties were also made. 3. The said show cause notice was taken up for adjudication by the Additional Commissioner. The Adjudicating Authority observed that apart from the entries made in the note books and rough papers there is no other evidence of clandestine removal. As regards statement of Shri Jagdish Prasad, he observed that it was clearly mentioned by him that the said note pad was not being maintained by him and the same appeared to be maintained by dispatch staff. The Revenue has not made any further enquiry from the dispatch sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dish Prasad was a confessional statement wherein he admitted clandestine clearances of finished goods and as such statements has not been retracted, the same has to be relied upon to uphold the allegations of clandestine removal. Similarly, in respect of shortages of goods, he observed that such shortages were admitted by Shir Jagdish Prasad and this implies that appellant has accepted its clearances and leads to the fact of clandestine removal. As regards the assessee s stand that the officers did not further enquire from the dispatch person about the loose papers and writing pads, he observed that such contentions of the assessee is deprived of any merit as it was always open to him at the time of the proceedings to deny that the said pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observing that he has accepted the clandestine removal. Further we note that as recorded in the order of the Original Adjudicating Authority as also as pleaded by the appellant, the said statement cannot be held to be confessional inasmuch as it is clearly deposed by Shri Jagdish Prasad that details in writing pad and slip pad etc. appears to be in the handwriting of dispatch and packing staff. Revenue has made no further efforts to get in touch with the said dispatch and packing staff or to find out who actually is the writer of the entries in the note pad. No enquiry stand made even from the Directors or from any other person/staff of the assessee. The entire case of the Revenue is based upon the not so confessional statement of Shri Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oborative evidences in the shape of buyers, Transporters, Raw material suppliers etc. are required to be produced by the Revenue upon whom the burden is cast heavily. To the same effect is the Tribunal s decision in the case of Commissioner of Central Excise, Ludhiana V/s Raj Lakshmi Dyeing Printing Mills reported as 2014 (312) E.L.T. 379 (Tri.-Del.) as also in the case of Commissioner of Central Excise, Ludhiana V/s Renny Steel Castings (P) LTD. reported as 2011 (274) E.L.T. 94 (Tri.-Del.), as confirmed by the Hon ble Punjab Haryana High Court reported as Commissioner of Central Excise, Ludhiana V/s Renny Steel Castings (P) Ltd. reported as 2013 (288) E.L.T. 45 (P H). In view of the forgoing we find that the Revenue has failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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