TMI Blog2003 (4) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... on these two pieces of evidence, the case had been booked for recovery of duty of ₹ 4,36,428. However, the Commissioner (Appeals) accepted the assessee's argument that the statement had been recorded on coercion and the same had been resiled. They also submitted that there was no corroborative evidence of manufacture and removal of goods. It was also pleaded that the entries made in the note book cannot be accepted as a piece of evidence. In this regard, the Commissioner has relied on a number of judgments. The findings recorded by him in paras 3 to 6 are reproduced herein below: 3. I have gone through carefully the facts of the case, the grounds of appeal and the submissions made by the appellant during the course of personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant had cleared the processed cotton fabrics without payment of duty. In this connection, I rely upon the Tribunal Order in the case of K.R. Steel Union Pvt. Ltd., 1987 (31) ELT 375 wherein the Tribunal has held that in the case of clandestine removal the burden of proof has to be established by the Department. It is seen that the lower authority has come to the conclusion that they had cleared the cotton fabrics without payment of duty based on the said statement of Shri Sampath. In fact no inquiry has been conducted at the buyers end to prove that they had actually received the cotton fabrics without payment of duty. Merely because certain entries were found in the said records these could not establish the fact of clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Tribunal in the case of M/s. Pooja Forge, 1996 (84) ELT 37 has held that in the case of goods still lying in the finishing room and no attempt was made to remove them clandestinely, confiscation and imposition of fine was not justified. Similarly the Tribunal in the case of New Polymer Industries, 1991 (52) ELT 145 has hold that if no clandestine removal of the goods was involved, seizure was not justified. In the case of Garden Silk Mills, 1991 (51) ELT 373 the Hon'ble Tribunal has held that when the goods were still within the factory premises and not attempted to remove the same clandestinely, the confiscation of the goods was not sustainable. Following the ratio of the above decisions of the Tribunal I hold that as the goods wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this appeal contends that the said findings are not as per law. They contend that the registers, private books can also be accepted as a piece of evidence besides as the same was corroborated by the statement given by Shri Sampath. It is stated that the production details were written from 23.2.96 to 8.4.96 and in the second note book the same were found from 1.4.96 to 5.7.96. At the time of investigation the proprietor Sri Sampath had admitted that the above details of productions were related to his unit. Hence the production note book is the basic evidence to prove the illicit transaction and it cannot be ignored as only a rough note book. Therefore, the observation of the Commissioner (Appeals) that these books were rough note books a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngwith the set of judgments to support, the order. He submitted that the statement was taken under coercion and duress and at the earliest opportunity, the statements were resiled and, therefore, it loses its validity. He submitted that for producing the said quantum of goods, said to have been cleared, the appellants required large quantity of inputs. The department has not indicated the inputs which were purchased and has not investigated the person to whom the final goods were sold. The department also did not record the statement of persons to whom the goods were said to have been sold. Therefore, there was no corroboration with regard to the contents noted in the note book. The department also did not rely on the electricity charges an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies made in the note book which is not corroborated cannot be the basis to confirm demands. In this regard, the citations referred to by the Commissioner clearly have laid down the issue and now it is well settled that entries of excess production in private register without corroboration by any other evidence or in the absence of excess stock on verification would not be sufficient to confirm the demands. This ratio has been so laid down in the following judgments: (1) CCE Meerut v. Bihar Tubes Ltd., 2002 (53) RLT 560 (CEGAT-Del) (2) I. Gurusamy v. CCE, Madurai, 2002 (80) ECC 157 (T): 2002 (145) ELT 616 (T-Chennai) (3) K. Rajagopal v. CCE, Madurai, 2002 (81) ECC 182 (T): 2002 (142) ELT 128 (Tri-Chennai) (4) T.G.L Poshak Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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