TMI Blog2018 (11) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... of S.K. Traders and G.R. of the transport company were available with the Revenue. Only a meager attempt to contact them by writing letters to their counterpart Central Excise Officers having jurisdiction over the premises of the said consignee was made, which was never responded by them. The statement of the buyers was never recorded.No statement of the owner of the transport company, so as to seek clarification from them, was recorded. Not only that the names of the consignee of the goods as shown in the invoices of S.K. Traders and G.R. of the transport company were available with the Revenue. Only a meager attempt to contact them by writing letters to their counterpart Central Excise Officers having jurisdiction over the premises of the said consignee was made, which was never responded by them. The statement of the buyers was never recorded. The settled law the allegations of clandestine removal are required to be upheld on the basis of positive and tangible evidences indicating such activities on the part of the manufacturing unit - the entire case of the Revenue is based upon the sole statement of Shri Suresh Kumar Dubey and there is no corroborative evidence on record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise, Noida vide which he has confirmed the demand of duty of ₹ 2,58,13,713/- against M/s Jjk Zarda Pan Products along with confirmation of interest and imposition of penalty of identical amount under Section 11 AC of the Central Excise Act, on the findings of clandestine removal of their final products. In addition the goods seized from the truck as also from the Transporter‟s premises stand confiscated with imposition of redemption fine and penalties etc. as also of confirmation of demand. The Adjudicating Authority also seized vehicles with an option to the appellant to redeem the same on payment of redemption fine. Further, penalty of ₹ 10 lakhs each stand imposed upon M/s Prabhat Zarda International and M/s Mehra Transport Company and of ₹ 20 lakhs stand imposed upon Shri Jai Kumar Arya, partner of M/s Jjk Zarda Pan Products. The said penalties have been imposed under Rule 26 of Central Excise Rules, 2002. 2. As per facts on record, M/s Jjk Zarda Pan Products is engaged in the manufacture of Chewing Tobacco Pan Chatani‟ and were duly registered with the Central Excise Department. On 24.08.2012, a truck was intercepted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n payment of duty. It may be noted here that the said two deponents were never put to question about the S.K. Traders or their existence or the invoices being issued by said S.K. Traders. 5. During the subsequent investigations, the sale depots of appellants were also visited and the statements of Authorized Representatives of the sale depots were recorded on various dates. The said statements are also non-incriminating statements and further, no inquiries were made from the said deponents about the existence of M/s S.K. Traders. The searches were also conducted at the places of raw material suppliers, dealers and other transporters and Courier agencies etc. as also in the sale depots of M/s Prabhat Zarda International and M/s Diamond Flakes which are factories of assessee‟s relatives but nothing incriminating was recovered either from the dealer‟s premises or the raw material suppliers or transporter‟s premises or from the CPU data maintained by M/s Prabhat Zarda Factory International. 6. As the Revenue found that the address of M/s S.K. Traders was fake and fictitious and based upon the statement of one Shir Suresh Kumar Dubey, a view was entertained that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on the allegations of clandestine removal to the extent of ₹ 2,53,31,825/-, we note that the entire case of the Revenue is based upon the statement of one Shri Suresh Kumar Dubey, an employee of the Transport Company. As per his statement, the 25 cartons found lying in the transporter‟s premises were covered by the invoice of M/s S.K. Traders. The owner of the Transport company, in his subsequent correspondence to the appellant had clarified that M/s S.K. Traders had also sent 25 cartons of chewing tobacco which were in fact covered by the invoices issued by him. He clarified that there was a mistake on the part of his employee in stating that the 25 cartons received from the appellant‟s were in fact covered by invoices of M/s S.K. Traders. As such it is the appellant‟s contention that his product is not covered by the invoice of S.K. Trader and it was S.K. Traders own goods which were covered by the invoices issued by him. 9. In any case and in any view of the matter, we note that apart from the said statements of Shri Dubey there is virtually no evidence on record to show that all the goods booked in the name of M/s S.K. Traders for the period in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Ahmedabad, reported as 2007 (216) E.L.T. 310 (Tri. Ahmd.) has held that even the confessional statement of the concerned persons cannot be adopted as an evidence to establish clandestine removal in the absence of any corroborative evidences to the contrary. It may be noted that initially there was difference of opinion between two members of the Bench and the matter being referred to the then Hon‟ble President of the Tribunal as 3rd Member, it was observed as under:- It appears that, having obtained confessional statements the Revenue Officers did not carry out the detailed investigation into the relevant aspects of the case, particularly, the Bank accounts of Bhimanis and the working of the assessee s factory. Recording of the confessional statement would not put an end to the investigation and the Revenue Officers should be careful to ensure that they are not tricked out of a regular and detailed investigation by making strategic confessions which are retracted by preparing affidavits soon after they are made and which affidavits are again strategically withheld from the Revenue Officers, so that they become complacent and do not carry out a fuller investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The Court further observed that no Director or employees of the assessee has admitted clandestine manufacture/removal of the goods and no investigations are carried out to ascertain factors which could indicate that assessee actually manufactured large quantity of goods in its factory viz. Discrepancies in stock of raw material or final products, extra working hours of factory, electricity consumption, payment of charges, transportation Bills, etc. It was held that as the Revenue was unable to establish clandestine manufacture and clearances of goods by them, the Revenue‟s appeal has to be rejected. 14. Though the learned advocate places reliance on number of decisions of the Tribunal laying down to that effect but suffice is to say that clandestine charges are to be proved by Revenue and in the absence of any evidence to reflect upon the same such charges cannot be upheld. In the present case, we note that even the evidences relied upon by the Revenue is not sufficient to upheld in their favour on the principal of preponderance of probabilities. The only evidence is statement of Shri Suresh Kumar Dubey which also stands explained by the owner of the transport company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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