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TMI Blog2021 (4) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Director thereof Shri Sanjay Goel and M/s Master India Pvt. Limited. 2. The facts in brief for the adjudication of present appeal is that M/s Kaycee Electricals is a manufacturing unit engaged in the process of hot rolling of copper ingots and thereby converting the same into copper wire ingots. The other appellants are also manufacturers of copper wire of their own and also on job work basis, for the ingots received from other manufacturers on fulfilment of the procedure in this respect. On 21.09.2005, the factory premises of M/s Kaycee Electricals were searched alongwith the residential premises of its Partners. Certain kachha parchies from the two Supervisors of M/s Kaycee Electricals were recovered alongwith the stock taking showing the excess of copper ingots and copper rod to have not been entered. Some currency of Rs. 20,87,310/- was also recovered from the office of M/s Kaycee Electricals and some amount from the Partner thereof Shri Jatinder Kumar Aggarwal and his nephew. Statements of employees as well as Partner of M/s Kaycee Electricals were recorded. Based thereupon the aforesaid two show cause notices were issued alleging clandestine removal of the copper ingot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 31, Section 58 and Section 106 of Evidence Act is bad in eyes of law. As these provisions have been improperly applied, accordingly appellants have prayed for setting aside of the said order and for all four of the appeals to be allowed. 5. While rebutting these arguments, learned Authorised Representative (AR) for the Revenue has submitted that the appellants at the preliminary stage itself had admitted about manufacturing of wire rod without bringing them into account and clearing the same without payment of duty. Those statements got well corroborated from the private records in the form of kachha slips recovered from M/s Kaycee Electricals. The unaccounted receipts of raw material and manufacture of unaccounted goods was corroborated by the statement of raw material suppliers. Since admission is the best piece of evidence against the person making admission, the Adjudicating Authority below has not committed any error while confirming the demand based upon the admission of the present appellants. In view of the said corroboration, the plea of the appellants of retracting while being cross-examined during denovo proceedings is of no relevance. Learned AR has therefore impress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority for de-novo adjudication. The appellants are at liberty to raise all the grievances before the Commissioner, including their grievance about the confiscation of the seized Indian Currency. 14. All the appeals are allowed by way of remand". 7. It is after the said order that the order under challenge dated 26.10.2018 has been passed. Perusal thereof reflects that during the denovo proceedings none of the witnesses except Shri Sanjay Goel and Shri Sunil Gupta appeared before him for being examined / cross-examined by M/s Kaycee Electricals. The Adjudicating Authority below has specifically recorded that both the said witnesses stated that their statements as were recorded during investigation were under threat of arrest and that they had voluntarily deposited the duty for the goods alleged to have been cleared without payment of duty in order to buy peace with the Department and to avoid undue pressure and threat to arrest. Despite the said findings, the Adjudicating Authority has held that there appears no retraction of previous statements by any of the person who had made those statements and accordingly section 31 of Indian Evidence Act alongwith Section 158 and 106 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-original and the impugned order under challenge are based merely upon the loose parchies and other handwritten documents as was recovered from the premises of M/s Kaycee Electricals and also on the basis of statements of the Supervisor as well as Partner that too of M/s Kaycee Electricals itself. The entire evidence is therefore nothing but a third party evidence. The law in this respect has been settled as is apparent from the decision of the Hon'ble Allahabad High Court in the case of Continental Cement Company vs. Union of India -2014 (309) ELT 411 (All.) wherein it was held- "that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. Any demand and the proportionate penalty on the Director of the manufacturer is not sustainable. There have been plethora of judgements to hold that to stand upon the charges as that of clandestine removal, there has to be some clinching evidence and the demand cannot be confirmed based on presumptions and assumptions. It was specifically held by the Hon'ble High Court that the charge of clandestine removal is a seri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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