TMI Blog2019 (4) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. It is not understood as to why two Pendrive seized from the residence of Shri Manish Kapoor, Director and Shri Ravinder Kumar were not put under seal, whereas all the other electronic devices recovered from the residence of other employees were properly sealed. It may not be out of place to mention here that incriminating data was recovered from the electronic devices seized from the premises of the Director his accountant and the Revenue s entire case is based upon the data retrieved from the said two unsealed Pendrive recovered from the residence of Shri Manish Kapoor and Shri Ravinder Kumar. That also the data retrieved from the Pendrive allegedly recovered from the residence of Shri Manish Kapoor on two different dates show two different informations. These facts admittedly lead to the doubt about correctness of the data so recovered from the said two Pendrives. Admittedly identical type of electronic equipments including the Pendrive are available in the market. The appellants have strongly contended that whereas the seized Laptop and harddiscs have reflected the unique number for identification, the Pendrive seized from the Director s residence has not reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded during investigations, which have not been tested by the tool of cross-examination, and as such are not admissible, we note that nothing remains as an evidence so as to uphold the charges of clandestine removal. It is a well settled law that clandestine removal allegations are required to be based upon legal, positive and sufficient evidences so as to inspire confidence in the Revenue s allegations or to at least show the evidences, which may tilt the case in favour of the Revenue on the principle of preponderance of probabilities. The clandestine allegations, being in the nature of quasi-criminal proceedings, cannot be upheld on the basis of assumptions and presumptions and require sufficient evidences. If the computer print out and statements are kept out of consideration, as discussed in the previous para as not being admissible evidences, there is virtually no other evidence produced by the Revenue to establish the charges of clandestine removal. It is well settled law that allegations and findings of clandestine removal are required to be upheld on the basis of sufficient and tangible evidences and not merely on the basis of assumptions and presumptions. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Durga Kraft Tissues Pvt Ltd, Vanik Papers Pvt Ltd, Shri Dalip Khanna (proprietor), Aslam Tyagi, Shri Praveen Bansal (proprietor) Versus C.C.E. S.T.-Meerut-I (In All Appeals) Ms. Seema Jain, Advocate, Shri Ajay Kumar, Advocate And Shri Abhishek Srivastava, Advocate for the Appellant Shri Sandeep Kumar Singh, Deputy Commissioner (AR), for the Respondent ORDER Per: Mrs. Archana Wadhwa. All the appeals are being disposed of by a common order as they arise out of the same impugned order passed by the Commissioner vide which he has confirmed the demand of duty of ₹ 8.96 Crores approx. against M/s.Meenu Paper Mills Pvt.Ltd. on the allegations and findings of clandestine removal along with confirmation of interest. In addition penalty of identical amount stand imposed upon them. Further the adjudicating authority has imposed penalties of varying amounts on the other appellants, who are individuals being director, proprietor or partners of various firms. 2. After hearing both sides duly represented by Ms.Seema Jain, learned Advocate for the appellants and Shri Sandeep Kumar Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been cleared clandestinely by the said manufacturer. Statements of various persons were recorded. Shri Ravinder Kumar, Accountant-Cum-Computer Operator of the assessee informed that the data stand stored in the name of M 14-15. He clarified that M meant M/s.Meenu Paper Mills in coded form and 14-15 referred to financial year 2014-15. He also deposed that the said data pertains to both accounted as well as unaccounted sale. Similarly the Pen-drive recovered from the residential premises of the Director Shri Manish Kapoor were examined and data was retrieved from therein, leading the Revenue to believe that the same represents the un-accounted sale purchase by M/s.Meenu Paper Mills. 7. During the course of further investigations, statements of various persons were recorded including the scrutiny of the documents of the transport companies, who under-took the transportation of the final product of M/s.Meenu Paper Mills. On comparison of the data retrieved from the Pendrive with the sale purchase figures as reflected in the statutory records of the assessee, the Revenue entertained a prima facie view that the said appellant was indulging in clandestine removals. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut accepting the assessee s plea of cross-examination and supply of Pendrive etc. allegedly recovered from the premise of the Director of the company as also from other sources. He also imposed penalties of varying amounts on the other co-noticees who were either the alleged supplier of the raw material or the purchaser of the clandestinely cleared goods. The said order is impugned before us. 11. Ms.Seema Jain, learned Advocate appearing for M/s.Meenu Paper Mills Pvt.Ltd. as also for other appellants has assailed the impugned order on number of grounds. After detailing the factual position she submits that the entire case of the Revenue is based upon the seizure of Pendrive, laptop, hard discs, server etc. either from the residential premises of Shri Manish Kapoor, Director of the said company or from the residential premises of the various employees and the statements recorded during the further investigations. She clarifies that the search and seizure conducted by the Revenue officers is not proper inasmuch as the same has not been done in accordance with the provisions of the Central Excise Act. By drawing our attention to the provisions of section 12F and 18 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itant of the locality where the search was to take place stands summoned for being a witness to the proceedings. On the contrary Revenue has used their own witnesses for conducting the searches and consequent seizures. This fact itself establishes a motive on the part of the Revenue and there is no explanation as to why a local inhabitant was not called for to be a witness to the proceedings. It is not the Revenue s case that some local inhabitants were called and they refused to participate. She submits that when the search itself was not in accordance with the provisions of law, the seizure is vitiated and seized records are not admissible evidence. For the above proposition she relied upon the following case laws..:- (a) Yeduru Sreeniasulu Reddy vs. The State of Andhra Pradesh [Manu/AP/1238/2001] (b) Pradeep Narayan Madgonkar Ors vs. State of Maharashtra [MANU/SC/0372/1995] (c) State vs. Om Prakash and Ors. [MANU/DE/3584/2013] (d) Prem lata vs. State of Himachal Pradesh [MANU/HP/0116/1986] (e) State of Madhya Pradesh vs. Ram Prakash Ors. [MANU/MP/0203/1988] (f) Abid Khan vs. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rive 4GB Nothing sealed Data from Pendrive taken out in O/o Commissioner at Noida. Sony pendrive had data of sale for 2014-15 No incriminating data in the other seized pendrive and Laptop. 2.12.2014 in the premises of Arora Pahuja Co CA s Gandhi Colony, Muzaffarnagar Laptop Model Dell Vostro 15, Service Tag (S/N) DZXT712; Express Service Code 30471275990. Laptop Model Lenovo S/N EB07140729; P/N R3NO37B23014 2 pen drives (red and yellow) Both laptops sealed with paper seal with signature of officers and party. Pendrives kept in envelope and duly signed by officers and party 23.4.2015 in the residential premises of Deepak Maheshwari at Pitampura Delhi One hard disc of and Seagate 320 GB S No.9VMFYQ3F Seven Pen drives Pen drives put in individual sealed envelopes and further sealed with paper seal Two pendrives opened on 27.4.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. It is her contention that as per the settled law when a print out from a computer is relied upon, then a certificate as prescribed has to be taken. No certificate was taken as prescribed although the persons from whom the certificate was to be taken were available. The certificate is mandatory and print out cannot be relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the Asst Commissioner in the presence of Ravinder Kumar (Pages 59-62) A perusal of the data taken out at both times shows that the data taken out in 2016 had more details, like quantity and rate, whereas the data taken out on 3.12.2014 did not have the said details. There is no explanation for additional information in the data. The data must have been tampered with even after its first printout. The printout of the data from the computers of the department is not reliable. (vi) Appellant does not have production capacity to manufacture Qty of finished goods allegedly sold. The quantification of qty allegedly sold as per the seized pendrive is Year Qty sold as per pendrive Qty removes as per ER-1 Returns 2010-11 (Feb March) 4468.59 2023.9 2011-12 16095.45 10959.21 2012-13 30361.22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls of Century Pulp Paper (6) Misc Papers There were no sale bills/invoice/kaccha perchies to any buyer. The documents seized from residential premises of Director, Shri Manish Kapoor were waste paper reports and waste paper bills. (ix) Averment in SCN that all GR S matching with sale data in pendrives is without actual comparison The SCN makes an averment that all GR,S/bilties found in the residence of Ravinder Kumar match with the sale data in the pendrives. It is submitted that there is no one to one co relation in the Show cause notice. Two GR S are sought to be co related with the data, the GR of the unaccounted sale itself shows that it was not a GR on which goods can be transported. (internal pages of SCN 12 to 16). (x) Presumption in SCN that sludge used as input to manufacture Kraft Paper not supported with any evidence. The SCN proceeds under the presumption that Appellant purchased 265273.85 MT of waste paper and pulp in the period in dispute and manufactured and sold 108491 MT of Kraft paper. Employees and Director of Appellant in thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the sludge to Central Pulp and Paper Research Institute and IIT Roorkee for opinion as to the use that the sludge can be put to. Both the institutes stated that the sludge can be used for Board making/ egg tray making or incineration in boiler as per CPCB Charter ( Pages 275-276) The CPCB Charter issued by Central Pollution Control Board for the Ganga River basin states states that the Primary Sludge from Wastewater Treatment has to be used either by supply to secondary manufacture of cardboards, moulded fibre packing material (like Egg Trays) or Co-combustion in mill's main boilers. The Appellant purchased the sludge for combustion in boilers. The sludge cannot be used to manufacture Kraft paper. (xi) QTY OF WASTE PAPER PURCHASED AS PER THE DATA IN THE PENDRIVE CANNOT MANUFACTURE THE QTY OF KRAFT PAPER ALLEGEDLY SOLD AS PER PEN DRIVE. The value of the input as per the data in the pendrive fall into 3 categories, between 50 paisa to 2 Rupees and between 9 Rupees and 12 Rupees. Two suppliers sale price is between ₹ 5 ₹ 6. (Pages 243-245 of Appeal Paperbook) (Internal Page 21-23 of Show Cause Notice). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty denied the appellant request to provide soft copies of Pendrive on the ground that print outs have been supplied as relied upon documents. She submits that documents/data relied upon has to be supplied in full and it is not the prerogative of the Revenue to select the intermittent data, which is in violation of principles of natural justice. She also submits that the Director as also many of the employees of the appellant company retracted their statements and filed the following chart on record, which is being reproduced for ready reference:- Director/ employees of Appellant retracted their statements Statement Submissions Ravinder Kumar , Accountant cum Computer Operator in his statement dt 03.12.2014 On being shown Waste Paper report file stated that the reports were given to him by Shri Manish Kapoor for data feeding and the reports are for unaccounted and accounted purchase of waste paper. On being shown transport documents recovered from his premises he stated that the documents are for transport of accounted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt 20.03.2015 stated that he was in charge of making invoices and dispatching the goods. On being shown the transport bilties in a folder resumed from residence of Ravinder Kumar he stated that the bilities are of transportation of goods of Meenu Paper. On being asked about the transporters, he stated that he had no knowledge and that all bilties are fake, that for transportation of craft paper they hired vehicles from the market and used fake GRs of the transporters. Retracted his statement on 21.3.2015. Retracted statement cannot be relied upon The transport documents seized from residence of Ravinder Kumar have not been endorsed by Nishant Garg, Excise Assistant and have not been corroborated. Aslam Tyagi in his statement dt 20.03.2015was statement of Ravinder Kumar, Manish Kapoor and Nishant Garg and he signed the same in agreement . Aslam Tyagi retracted his statement on 21.3.2015. Retracted statement cannot be used as corroborative evidence. She further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty against which it is used Jai Veer Singh, Proprietor Kartik Paper In his statement dt 01.05.2015 stated that they are engaged in trading waste paper. He was shown the printouts taken from the pen drives resumed from Manish Kapoor as well as his statements. He stated that the ledger account of M/s Meenu Paper shows sale to Meenu Paper in the name of Deepak Maheshwari. He stated that he agreed with the statement of Deepak Maheshwari. In his statement dt 06.05.2015 he agreed with the statement of Deepak Maheshwari that there was under valuation of goods. In his statement dt 07.05.2015 he agreed with the statement dated 07.05.2015 of Deepak Maheshwari. Three statements of Jaiveer Singh, all in Hindi, all three statements are in three different handwritings. Signatures are also different. Cannot be relied upon Not reliable (Pages 161-167) Statement of Arshad Ali Khan, Proprietor Jai Bharat Trading dt 08.06.2015 wherein he stated that he is engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The actual rate of waste paper is ₹ 10 to ₹ 12/- The Ledger from pen drive shows total sale of Neeraj to Appellant as ₹ 27,05,058/- which is lesser than the accounted sale of Neeraj. As per the data in pendrive the rate of supply is ₹ 0.32 / kg which could be for waste/ sludge, not waste paper. Statement of Deepak cannot be relied upon Statement of Amrish Kumar, Proprietor Ginni Enterprises dt 06.05.2015 wherein he stated that the entry in the name of Ginni is of his firm. he admitted to unaccounted sale of waste paper Statement written by one Shirish Kumar whose identity has not been disclosed . Statement signed by Amrish Kumar in English. No reason given as to why Amrish Kumar did not write his own statement. Statement written by another person without assigning reason not admissible Similarly statement of only 17 buyers, commission agents stand recorded out of huge number of such buyers mentioned in the Pendrive and penalty of ₹ 1.00 lakh has been imposed only on 6 out of 17 buyers. Non-proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said electronic equipments in the presence of Shri Manish Kapoor as also Shri Ravinder Kumar. The data so retrieved stand supplied to the assessee along with the show cause notice listed as list of relied upon documents . As such appellant s grievance has no stand. As regards cross-examination of various witnesses, learned A.R. submits that inasmuch as the appellant did not give any cogent reason for seeking cross-examination of various deponents of statements or the officers etc., the adjudicating authority has rightly rejected the request for cross-examination by observing that the same was a ploy for delaying the proceedings. The Commissioner has also referred to various decisions of the Hon ble judicial forums to impress upon its decision of not giving the cross-examination. Specific reference stands made to the Hon ble Apex Court decision in the case of Surjit Singh Chabra v. UOI [1997 (89) E.L.T. 646 (S.C.)] which stands followed by the Tribunal in the case of Jagdish Shankar Trivedi v. Commissioner of Customs, Kanpur reported as 206 (194) E.L.T. 290 (Tri.-Del.)]. It stands held in the said decision that admission made by an assessee binds him and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Revenue s stand of clandestine clearance of the goods. As regards the plea of the learned Advocate that it is only few of the raw material suppliers and the customers, which were investigated by the Revenue, as against huge number of such suppliers of customers learned A.R. submits that the Revenue is not expected to investigate each and every supplier and customer and such sample investigations are sufficient to tilt the weight of the evidence in favour of the Revenue. In view of the foregoing he prays for rejecting all the appeals. 18. We have considered the submissions made by both the sides and have gone through the impugned order. 19. It is seen that the entire case of the Revenue for arriving at the findings of clandestine removal is based upon the data retrieved from the various Pendrives and the computers recovered either from the residential premises of the Director of M/s.Meenu Paper Mills or their residential premises of their employees, read with statements of various persons recorded during the course of investigations. The Revenue, based upon the said evidences has alleged that whereas during the period from 2010-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them to do so (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code. 21. A joint reading of both the provisions show that the searches to be conducted at a particular place require witnesses from the inhabitants of that locality. It is only if no such inhabitant of the locality is available or is willing to be a witness in the search, another witness, as available may be invited to witness the proceedings. The appellants have filed a detailed chart showing that in various searches undertaken at different places, the same witness stand associated. For example one Shri Rinku Singh, son of Shri Mahipal Singh and resident of House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iri Nivasulu Reddy reported as MANU/AP/1238/2001 has observed that inasmuch as search involves fundamental right of citizens, provisions of Section 55 of Andhra Pradesh Excise Act, 1968, which require following of Section 100(4) of Criminal Procedure Code must be adhered to and searches not in consonance with mandatory provisions were not justified. By observing so Hon ble High Court held that consequently, for this lacunae, the search and seizure is vitiated and the conviction is wholly unsustainable. Similarly Hon ble Supreme Court in the case of Pradip Narayan Madgaonkar And Others v. State of Maharashtra reported in MANU/SC/0372/1995 observed that Section 100(4) of the CRPC requires that before making a search, the officers or other person about to make it, shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate. The Courts generally look for compliance of the aforesaid provisions. By referring to the witnesses, the Hon ble Supreme Court observed that if the witnesses did not belong to the locality where the search was conducted, what was the occasion for them to be present near the building at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue to gain access to the said data and request for cross-examination of the said person and for forensic examination of the data was not acceeded to. As such submits that this is not a reliable data. There is no evidence to establish that the Pendrives that were opened to retrieve the data were the same Pendrives which were seized. She submits that the computers as also Laptops and Pendrives have a unique number for identification. Whereas the said number on the seized Laptop and hard disc has been recorded in the Pendrive, but the product code has not been mentioned in the Pendrive. The 16 GB Sandisk Pendrive allegedly recovered from residence of Director Manish Kapoor was seized on 03.12.2014 and the same was opened in the office of the Chief Commissioner on the said date. Subsequently, data from the same Pendrive was taken out again on 15.02.2016 and the data retrieved on both the occasions was different inasmuch as there was additional information in the data retrieved on 15.02.2016. While examining the above aspect of discrepancies in the data retrieved from the same Pendrive on two different occasions and the fact of unsealing of the same, we find favour wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relates, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. 25. As is seen from above provisions of Section 36B, electronic evidence to be referred to and relied upon by the Revenue, there are certain conditions which are required to be satisfied. The said provision prescribes that wherever in any proceedings, the computer print outs are to be relied upon, a certificate identifying the document containing the statement and describing the manner in which it was produced is required to be obtained. In the present case we have seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to Tribunal s decision in the case of Surya Board Ltd. v. Commissioner of Central Excise, Rohtak [2014 (318) E.L.T. 282 (Tri. Del.)] wherein after taking note of the various decisions of the higher courts as also of the precedent decisions of the Tribunal, it was observed that presumption under Section 36A of Central Excise Act read with Section 36B has to be made in regard to computer print out seized and not in respect of computer taken from the seized computer. For better appreciation the relevant paragraph from the said decision is reproduced below:- 17. The Tribunal in the case of S.Namasivayam v. CC, Chennai reported in 2009 (240) E.L.T. 255 (Tri.-Chennai) has observed that the Revenue s case built on the basis of data contained in the hard disk of the computer, the integrity of which is challenged by the assessee cannot be relied upon, without cross-examining GEQD. We further take into consideration the Tribunal s decision in the case of Premier Instruments Controls Ltd. v. CCE, Coimbatore reported in 2005 (183) E.L.T. 65 (Tri.-Chennai). In para 9 of their decision, the Tribunal has examined the provisions of Section 36B of the Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in a position to produce such certificate being in control of the said device. In a case where electronic evidence is produced by a party, who was not in possession of a device, applicability of section 63 and 65 of the Evidence Act could not be held to be excluded. 28. We may also refer to the Tribunal s majority decision in the case of Flex Industries Ltd. v. Commissioner of Central Excise, Lucknow. Originally there was difference of opinion between Member(Judicial) and Member(Technical), as regards the admissibility of the computer print outs retrived from the computers seized from the manufacturers unit as also from various distributors and dealers of the manufacturers. By taking note of the Hon ble Delhi High Court decision in the case of Dharam Veer v. Central Bureau of Investigation vide its order dated 11.03.2008, as also by taking note of the fact that the computers seized from the manufacturers units were not sealed properly and there was a gap between the seizure and the retrieval of the data, it was held by Member(Judicial) that such retrieved data cannot be a relied upon. It was observed that there was no explanation put forth by the Revenue as to why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands denied by him on a frivolous ground. The Commissioner has observed that the appellants have made the request for cross-examination only with an intention to delay the proceedings. Cross-examination of the deponents of the statements, in the present case, was necessary to test the veracity of the statements of such deponents and was a necessary requirement of fair and just adjudication. If the Revenue intended to rely upon the said statements, this could not have been done by them unilaterally by recording the statements and then relying upon the same, without affording the appellant to cross-examine such deponents, especially when some of the deponents has retracted their statements subsequently. The issue of cross-examination of witnesses, as prescribed in Section 9D(1) of Central Excise Act, 1944 was the subject matter of various precedent decisions. The Hon ble Allahabad High Court in the case of CCE, Meerut-I v. Parmarth Iron Pvt.Ltd. [2010 (260) E.L.T. 514(All.) has held that if Revenue seeks to rely on statements of various witnesses recorded, the same have to be made available for cross-examination to establish whether such statements stand voluntarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Commissioner of C.Ex., Meerut vs. R.A. Castings Pvt.Ltd. [2011 (269) E.L.T. 337 (All.)] also held that it was incumbent upon the Revenue to produce the share brokers upon whose incriminating statements, the Revenue was relying upon as also investigating officers, for cross-examination, in the absence of which, the statements could not be relied upon. 30. Applying the ratio of all the decisions discussed above, it can be safely concluded that the statements recorded during investigation, which have not been tested on the touchstone of cross-examination and examination in chief in terms of the provisions of section 9D of Central Excise Act, cannot be referred to and relied upon as an admissible evidence in the adjudication proceedings. The result of the same would be that the said statements have to be taken out of the consideration and no reliance can be placed upon the same. The Revenue s entire case is based upon the print outs retrieved from the seized electronic documents, which have already been discussed by us in the preceding paragraphs and have been found to be of doubtful nature, read with the statements of various persons recorded during investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared on payment of duty; (g) statement of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carried on in the factory of production; etc. While examining the present case in the light of fundamental criteria laid down in the said decision, we note that if the computer print out and statements are kept out of consideration, as discussed in the previous para as not being admissible evidences, there is virtually no other evidence produced by the Revenue to establish the charges of clandestine removal. 32. We also note that the appellants have contested that they do not have capacity to manufacture such a huge quantum of paper, as alleged by the Revenue. Learned Advocate has drawn our attention to the Tribunal s decision in their own case reported as M/s.Meenu Paper [2016 (344) E.L.T. 894] vide which it was admitted that M/s.Meenu Paper has enhanced their capacity from 5000 MT per annum to 15,000 MT per annum in the year 2009. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re a person is convicted. It has been repeatedly held by the Courts that clandestine manufacture and clearance cannot be readily inferred from few documents and statements unless the allegations are also corroborated and establishe3d on evidence, relatable to or linked with actual manufacturing operations. In the present case there is no such evidence forthcoming in the records before us to suggest clandestine manufacture and consequent clearance by the appellant. We have already observed about the production capacity of the appellant. Admittedly for clearing the final product in a clandestine manner, the same is required to be first manufactured in the factory. Revenue has not produced any evidence of procurement of various raw materials required for manufacture of excess goods in the appellant s factory, especially when they have contested the fact of their production capacity, based upon the Tribunal decisions in their own case. The evidences of procurement of sludge, which can only be used as fuel as per chemical examiners report also does not advance Revenue s case. We really fail to understand that in the absence of the manufacture of the paper in question, how the same could ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
