TMI Blog2019 (1) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... any record as to what such amounts represent or what were the goods and their quantity and when the same were cleared. It is coupled with the fact that both the alleged consignees have refused their statements. Shri Kishorebhai has retracted his statement and Alpeshbhai’s statement and letter stands disputed. There is no independent evidence of manufacture and clearance of goods from the factory of Appellant. Merely on the basis of entries is diaries/ loose sheets which do not have name and quantity of goods apart from the fact that the buyers whose statements were relied upon has negated their statement, the demand does not sustain. Even the statement of the alleged buyers Shri Kishorebhai Mavjibhai Medpara Proprietor of Ms/ Shreenathj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAJ-EXCUS-OOO-APP-112 to 115-2018-19 passed by Commissioner (Appeals), Rajkot wherein the adjudication Order No. 133/ADC/PV/2016-17 dated 08.03.2017 was upheld. 2. The brief facts of the case are that M/s Kamdhenu are engaged in manufacture of PVC Rigid Pipes falling under Chapter heading 39 of the schedule to the CETA, 1985. Their factory was visited by the officers and three small red / blue diaries were seized. It was found that the said diary contains the details of finished goods cleared clandestinely by the Appellant. Statement of Shri Jigneshbhai, partner was recorded in which he accepted that the diaries contain the details of goods cleared clandestinely. Further the Estimate documents were also found and the same were also acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndestine removal and receipt of same by the alleged buyers. The statements of alleged buyers are third party statements with no evidence. The details of clearances shown in their statements do not represent the name or quantity of goods. 4. Ld. Counsel Shri H. Ganguly appearing for the Appellants Shri Kishorebhai Medpara of M/s Shrinathji pipes and Shri Dipeshbhai of M/s Nananvati Co. submits that their statements were obtained under coercion. Both of the persons do not know English language whereas the statements were recorded in English and they were made to sign without reading the contents. That Shri Kishorebhai in his cross examination has refused his statement. That in case of Shri Dipesbhai, he has authorised Shri Alpeshbhai for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully and he did not purchase any goods without payment of duty. The adjudicating authority has contended that Shri Alpeshbhai, authorized representative of M/s Nananvati Co. did not appear and instead sent letter dated 21.09.2016 reiterating the facts of his statement. However the ld. Counsel appearing for Shri Dipeshbhai submits that the statement of Shri Alpeshbhai is not correct. The statement of Shri Alpesh was written in English which he does not know. He was unaware of the contents and was made to sign the statement under threat and coercion. He was called upon for cross examination and on that date since the Advocate representing Shri Kishore Mendpara requested another date of cross examination, therefore the advocate of M/s Kamd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods from the factory of Appellant. Merely on the basis of entries is diaries/ loose sheets which do not have name and quantity of goods apart from the fact that the buyers whose statements were relied upon has negated their statement, I am of the view that the demand does not sustain. Some pages of diaries bear the amounts and date whereas some of the sheets also bears the name of persons/ concerns. However there is no mention of goods or quantity of goods which has been transacted against such amount. None of the persons apart from above two whose name are appearing in diaries/ loose papers has been investigated. Even the statement of the alleged buyers Shri Kishorebhai Mavjibhai Medpara Proprietor of Ms/ Shreenathji Pipe, Shri Dipeshbha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finished goods had been clandestinely manufactured and cleared. After referring to several earlier decisions of the Tribunal on the subject, the Tribunal held that the charge of clandestine manufacture was not established. The Hon ble High Court of Gujarat upheld the tribunal order as reported in [ 2013 (287) E.L.T. 243 (Guj.)]. The law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are that there should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions supported by evidence. There has to be raw material brought or lying in stock in excess of that contained as per the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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