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TMI Blog2019 (9) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded wherein he stated that he was holding 90% shares in M/s Sunshine Overseas and 10% shares were held by Shri Sushil Bansal. That the real owner of the firm is Shri Harron Bhai, who is taking 90% profit. He also stated that they were purchasing fabrics from Surat and after cutting and stitching, they manufacture Scarfs and Dupattas, which were exported. From January 2003, they received fabrics of different types under the cover of annexures issued by the Central Excise and they were showing fictitious names and addresses of the buyers at Bhiwandi on the Central Excise DTA invoices as no goods were delivered. He also stated that Shri Haroon Chhaya, owner of M/s Al Amin Exports and Shri Irfan Bhai are looking after all monetary dealings of M/s Sunshine Overseas. Statements of Shri Irfan and Shri Haroon were recorded wherein they stated that the entire operations of M/s Sunshine were looked after by them. That they were not holding any position in firm but were looking after entire work. No material was received by them against CT-3 issued in favour of M/s Sunshine. They were making exports out of raw material received from M/s Bilal Latif Memon. Investigation at Appellant firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations in Warehouse Regulation Rules, 1966 and also filed periodical returns showing manufacturing and supply of finished goods to the recipient of 100% EOU viz. M/s Sunshine Overseas. Only on the basis of statements allegations were made against Appellant. There is no evidence of removal of duty free raw material by the Appellant i.e. movement of goods, any identified buyer or recipient of goods, any amount being received by the appellants on account of removal, or transportation of goods. During the visit to the Appellant factory and preparation of panchnama, no discrepancy was found in stock of raw material, finished goods and inventory record. There is no dispute about the fact that the Appellant had maintained properly all the statutory records. They also followed the procedures of Removal of Finished Goods to Other 100% EOUs in terms of Rule 20 of Central Excise Rules, 2002 and CBE&C Circular No. 579/16/2001-CX dated 26.06.2001, which prescribes the removal of finished goods under the prescribed AR-3 Form - in quadruplicate, distribution of copies of AR-3s, accountal of goods in warehouse, responsibility of the consignor and the consignee and in particular the requirement tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different vehicles, but only one single recorded statement dated 11.3.2005 involving one transporter and two tempos cannot automatically prove that all other vehicles were used to transport Polyester Yarn in the alleged clandestine manner. He submits that in above circumstances and in absence of cross examination, the statements of persons connected with M/s Sunshine Overseas or transporter cannot be basis for making demand against Appellant unit. 2.2 The Ld. Counsel further submits that though the Revenue's case is that there was no manufacture and removal of finished goods, but no evidence has been brought on record, but say that there was "No Manufacture" or disapproved documents available on record showing the effect of manufacture and clearance of finished goods. He also relies upon the judgments in case of SUNSHINE OVERSEAS vs CCE - 2011 (268) ELT 374 (Tri), and NITIN TEXTILES - 2010 (261) ELT 181 (Tri). He submits that in view of above facts, the impugned order is not sustainable and is required to be set aside. 3. On the other hand Shri L. Patra, Ld Assistant Commissioner (AR) appearing for the Revenue submits that from the statements of partners of M/s Sunshine Overseas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.2003 of Tempo Driver Shri Saiyad and statement dtd 19.8.2003 of Shri Akbar Sahid Umar, tempo owner, they did not say anything about transportation of raw material. It was only in March 2005 that statement of Shri Vijay Purohit, Tempo owner was recorded who on the basis of memory though stated that they had transported Polyester Grey Fabrics and not Polyester Yarn, but could not say as to where such goods were consigned. In such case the statements made by the transporters cannot be made basis for making allegation to clandestine diversion of raw material by the Appellant. It is also a fact on record that though 46 consignments of finished goods were transported through different vehicles, but only one statement dated 11.3.2005 of Shri Vijay Purohit has been relied upon to allege removal of Polyester Yarn in clandestine manner. We also find that Shri Sanjay Aggarwal vide affidavit dt 1.7.2003 and 4.3.2005 had retracted the statements made by him before the investigating officers. Once the statements has been made basis for alleging clandestine clearance, the adjudicating should have granted cross examination. The Appellant during the adjudication proceedings, had sought cross exa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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