TMI Blog2018 (12) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... hed. Admittedly the burden of proving clandestine removal is on the Revenue and is required to be discharged by production of positive and affirmative evidences - It is well established that the charge of clandestine removal is in the nature of quasi criminal adjudication, which also results in criminal liabilities by way of prosecution of the concerned persons. As such the same requires stronger prove by production of positive evidence and cannot be made on the basis of some scribblings in the loose papers recovered from the factory. In the present case, the Revenue has not investigated the matter further and has based his entire case on the basis of entries in loose papers only, the scribe of which is also not identified. Further reference to the so called inculpatory statement of Shri Harmeet Singh who is a co-appellant, even if considered to be confessional in nature, cannot be made the sole basis for arriving at the finding of clandestine removal unless the same is corroborated by independent evidences. The deponent of statement, Shri Harmeet Singh have assailed the free and correct nature of the same by referring to the fact that they were made to deposit certain amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er investigations were carried out and the statement of Shri Sanjeev Kumar, Supervisor and Sales Billing Incharge of the appellant was recorded wherein he deposed that he was responsible for preparing sales bills of the finished goods in the factory, nine parallel invoices indicated clearance of the goods without any payment of duty. The statement of Shri Harmeet Singh, Partner of the appellant company recorded on 12.03.2014 admitted the clearances affected through the said nine invoices as not being accounted in the records. As regards loose papers, he deposed that he was not in a position to explain the same and would explain the same after consulting the records. Subsequent statements of Shri Harmeet Singh were recorded on 01.05.2014 and he was questioned about vehicle owners of the Tempos mentioned in the said loose slips. He deposed that he would not know the name of the owner of the vehicle and said that he had hired tempos available in the market. Further he admitted clearance of goods under the cover of said nine invoices and submitted that payments were received by them in cash. As regards loose papers he clarified that the clearances have been accounted for in some cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be made the basis for arriving at the findings of clandestine removal, unless there is corroborative evidence on record. The Adjudicating Authority has referred to the statements of Shri Sanjeev Kumar as also Shri Harmeet Singh which are not inculpatory statements. In fact it stands contended before us that there are discrepancies in the statement of Shri Harmeet Singh himself wherein he has deposed that the final product was cleared in the market against cash whereas the fact remains that name of the appellant s buyers as mentioned in the said loose slips were of their regular customers. There is no evidence of any excess purchase of raw material or excess production of goods. In spite of the Revenue having the name of the buyers, they have not been contacted and no investigations stand made from the transporters. In such scenario, it is the contention of the appellants that the figures mentioned in some loose sheets cannot held to be figures of clearances unless corroborated by independent and material evidence which are totally absence in the present case. 8. We find force in the appellant s contentions. The entire case of the Revenue is based upon the entries made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge of clandestine removal is in the nature of quasi criminal adjudication, which also results in criminal liabilities by way of prosecution of the concerned persons. As such the same requires stronger prove by production of positive evidence and cannot be made on the basis of some scribblings in the loose papers recovered from the factory. 10. In the present case we find that the Revenue has not investigated the matter further and has based his entire case on the basis of entries in loose papers only, the scribe of which is also not identified. Further reference to the so called inculpatory statement of Shri Harmeet Singh who is a co-appellant, even if considered to be confessional in nature, cannot be made the sole basis for arriving at the finding of clandestine removal unless the same is corroborated by independent evidences. The Hon ble Supreme Court in the case of Mahtesham Mohd Ismail vs. Special Director, Enforcement Directorate reported at 2007 (220) E.L.T. 3 (SC) has observed that confession, only if found to be voluntary and free from pressure can be accepted. A confession purportedly made before the Authority would require a close scrutiny and it is well settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
