TMI Blog2019 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... rd any independent evidence to support the retracted statements. Consequently no reliance can be placed on such statements to support the charge of clandestine manufacture and removal of finished goods by the Appellant Company. It is trite law that third party document alone cannot be relied upon as admissible piece of evidence. It has repeatedly been held by the Courts and this Tribunal that clandestine manufacture and clearances cannot be inferred from a few documents and statements unless the allegations are corroborated and established on evidences relatable to or linked with actual manufacturing operation - In the present matter no such evidence is brought on record. Shortage found in the stock of finished goods - Held that:- There is nothing on record to show that actually the stock of laminated sheets were physically checked by the officers. The Revenue has not controverted the contention of the Appellant that in the given time of 9-10 hours, the officers were present in the factory premises, it was not feasible to verify the stock of laminated sheets of different sizes physically - the Revenue has not succeeded in establishing that there was any shortage of finished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estine removal has been admitted by Rohit Vasistha, Narendra Khemka and Manoj Choudhary in their respective statements. The learned Commissioner has observed that it is a cardinal principle of law that what is accepted or admitted, need not be proved and the Department is not expected to prove clandestine clearance with mathematical precision. 4. The learned Advocate, Shri Bipin Garg, has submitted that the entire case has been made on the basis of the slips/documents resumed from the residence of Rohit Vasistha, who had cooked and planted the said documents, as he was annoyed with the management of the appellant company, on account of salary and issue of perquisites. The said fact has been admitted by him in his letter dated 11.08.2011. Moreover, he had retracted all three statements on the very next day, vide notorized Affidavits. Above all, Rohit Vasistha has filed appeal, denying all the allegations. 4.1 The learned Advocate, further, submitted that the cross-examination of Rohit Vashistha has been denied observing that cross-examination is not a fundamental right in adjudication proceedings, as held in a plethora of decisions and the appelalnt had not furnished any concr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The charge of clandestine removal is a serious one, which has to be proved on the basis of tangible, concrete and cogent evidences. There is no independent corroboration either from the buyers whether they received the finished goods allegedly removed clandestinely, or from the transport owners/truck drivers. Further, there was no shortage found in the stock of raw materials. If the Appellant was indulging in such huge clandestine manufacture and removal of excisable goods, there should have been discrepancy in stock of raw materials. The demand of duty has been confirmed on the basis of presumption that the loose slips contained the details of actual production of laminated sheets, on a particular day. In fact the details on loose sheets, were the noting of either production plan or requirement of buyers/dealers, discussed on phone. Such figures mentioned in the loose slips cannot be presumed to be actual production of the goods. Similarly the loose slips mentioning cash has not been corroborated by any independent evidence. There is no evidence at all to show that those slips belong to the Appellants. Further, the demand of duty has been confirmed on the basis of orders mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belatedly. 8 We have considered the submissions of both the sides and perused the records. It is not in dispute that the whole case has been made on the basis of documents recovered by the officers from the residential premises of Rohit Vasistha, Authorized Signatory of the Appellant Co. and the statements recorded from him, director and supervisor of the Company. Rohit Vasishtahas been found wavering in the entire matter. The Appellant Company has alleged that as he was annoyed with the Company, he had fabricated the documents and kept the same at his residence to harm the Company. He has also written a letter to Commissioner complaining about the harassment by the Company on 12.08.2011. But when his statements were recorded subsequently he had retracted the same the very next day by swearing affidavits. All these events make him unreliable. Further, the learned Adjudicating Authority has not allowed cross-examination of Rohit Vasistha which is gross violation of the principles of natural justice. The Hon ble Supreme Court in very clear terms has held in Andaman Timber Industries, supra, that denial of cross-examiantion of the witness whose statements were made the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to support the documents/statement has been brought on record. It is also observed that no document about clandestine activities has been recovered from factory premises. Further no discrepancy in the stock of raw material has been noticed by the officers at the time of search of the factory. It is trite law that third party document alone cannot be relied upon as admissible piece of evidence. It has repeatedly been held by the Courts and this Tribunal that clandestine manufacture and clearances cannot be inferred from a few documents and statements unless the allegations are corroborated and established on evidences relatable to or linked with actual manufacturing operation. In the present matter no such evidence is brought on record. We also agree with the learned Advocate that duty cannot be demanded on assumption and presumption, as has been done in the present matter. It has been assumed by Revenue that if there is no invoice issued within 15 days of order received from a buyer, the finished goods had been cleared without issuing an invoice and without payment of duty. As held by the Hon ble Supreme Court in Oudh Sugars Mills Ltd. Vs UOI, 1978 (2) ELT J172 (S.C.), the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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