TMI Blog2022 (8) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... o verify the truthfulness of the entries made therein; his statement was also not recorded and that all the entries in the said notebook appeared to be made with the same ink at same time - it has been held in a catena of judgments that a serious charge like clandestine removal cannot be established without tangible evidence or procurement of raw material, deployment of labour, consumption of electricity, manufacture of excisable goods, sale of excisable goods, transportation of excisable goods and receipt of consideration etc. It is found that other than the entries in the notebook and the statement of the appellants no other evidence has been put forth by the Department. Under these circumstances, the statement of the appellant has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed the duty demanded and imposed equal penalty under Section 11AC ibid. On the appeal filed by the appellant learned Commissioner (Appeals) vide order dated 16-05-2018 upheld the order of the lower authority and therefore, the appellants preferred the instant appeal. 2. Learned Counsel for the appellants submits that the entire case of department based on the entries in a Shristi Brand Notebook recovered during the search. He submits that however, the person, who allegedly have made entries in the said notebook has neither been identified nor his statements were recorded; the proprietor of the company was made to accept the clandestine removal and to make deposit the amount towards duty. Learned Counsel submits that in addition to non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor trolley. (vii). A look at the notebook gives an impression that all the entries have been written with the same pen and at the same time; private record appears to have been sources and planted. 3. Learned Counsel further submits that in a similar situation Hon ble Delhi High Court in the case of M/s Flevel International Vs Commissioner of Central Excise 2016 (332) E.L.T. 416 (Del.) held as under:- 55. Mr. Hari Shanker, learned Senior counsel for the appellant, has also drawn the attention of the Court to a decision of the CESTAT in Arya Fibres Pvt. Ltd. v. CCE, Ahmedabad-II - 2014 (311) E.L.T. 529 (Tri.-Ahmd.) where the entire law concerning clandestine removal has been discussed and the legal position has been summarised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised Representative for the revenue reiterates the findings of Order-in-Original and Order-in-Appeal and submits that the impugned order has extensively analyzed the evidence submitted by the revenue and have upheld the charge of clandestine removal. Hence, the appeal is liable to be rejected. 6. Heard both sides and perused the case records. 7. We find that the case of the Department is that the appellants have indulged in clandestine removal. The department came to this conclusion on the basis of entries made in a certain note book recovered from the appellant s premises. Learned Counsel for the appellants submits that the author of the notebook is not identified to verify the truthfulness of the entries made therein; his state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not identified and evidence was not established as to the truthfulness of contents. This becomes significance due to the lack of any other corroborative evidence. 9. I find that clandestine removal is a serious charge and requires to be substantiated by evidence encompassing various activities in the chain of events. I find that the Tribunal, in the matter of Nova Petrochemicals v. CCE, Ahmadabad-II, in its Final Order Nos. A/11207-11219/2013, dated 26-9-2013, held as under (in Para 40) After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well settled that, in cases of clandestine manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
