TMI Blog2023 (4) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... out duty payment, other corroborative evidence is required in support and merely on the strength of statistical data, the charge of duty evasion cannot be upheld. The charge of clandestine clearance is required to be proved beyond an iota of doubt and by irrefutable evidence. Then only can imposition of duty liability on the said goods is sustainable. Thus other tangible, sufficient and corroborative piece of evidence is necessary to establish the charge of clandestine manufacture and clearance. Each link in the process is required to established - The burden to establish the factum of clandestine clearance is upon the revenue and required to be established beyond all reasonable doubt and mere suspicion or sole entries in certain records whose authenticity itself is under challenge cannot be the singular yardstick to uphold such a contention. It is settled law that the noticee has to be offered all reasonable opportunity of defence and any levy fastened denying natural justice is clearly unsustainable - the twin facets of non-supply of certain records more particularly DSA inform RG-12A and the lack of opportunity of cross examination of the witnesses are in clear violation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary, 2007 to September, 2008 without issuing any Central Excise Invoice and without accounting for the same in their official records. 3.2 The Departmental proceedings culminated into issuance of a show-cause notice demanding Excise duty to the tune of Rs.19,38,504/- [Basic Excise Duty = Rs.10,83,852/-, NCCD = Rs.1,33,441/-, Biri Cess = Rs.6,67,186/-, Education Cess = Rs.37,693/- SHECess =Rs.16,332/-] besides proposing confiscation of seized goods, imposition of penalty and demand for interest under relevant provisions of law. 3.3 The show-cause notice was adjudicated vide order dated 30.08.2011. Further, it is noticed that the order passed by the ld. Adjudicating Authority is an exparte order inasmuch as the ld. Authority who had heard the matter failed to adjudicate it as he was transferred out of the jurisdiction. The incumbent adjudicating authority thus had given three specific dates to appear before the adjudicating authority by way of one single communication. However, on the plea that the earlier authority had already heard the noticee and their reluctance to appear for personal hearing, he proceeded to adjudicate the matter. 3.4 In their response before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various rooms of the appellants house and factory, besides the recovery of certain loose sheets, private and other statutory records. The demand for the alleged duty evasion for the period January, 2007 to September, 2008, is purportedly an outcome of the details contained in these private records. 5.1 While recovery of the private records from the premises of the appellant have not been disputed. The appellants have denied lack of complete knowledge thereto as well as its contents. It has been their case that the said register does not belong to them and could have been left behind at their premises by one of the several traders visiting their premises. It is on the basis of this register that the charge for duty evasion during the period January, 2007 to September 2008 has been worked upon. The appellant has however disputed the very ownership of the same, alleging that his signatures were forcibly obtained thereon. Be as it may, it is well settled that mere entries in a diary/register or other records, without any corroborative evidence cannot be the basis to fasten the short-levy and uphold the charge of clandestine manufacture and clearance. To sustain the charge of cland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold such a contention Sharma Chemicals Vs. CCE 2001 (130) ELT 271 (Tri.). Further, it may be pointed out that let alone unimpeachable corroboration, there is no semblance or even an attempt to cross-verify the said entries in the records seized from the possession of the appellant. The mere testimony of some buyers without going into specific details of the numbers of biri sticks received without cover of invoices on a given day and its corroboration with clearance of the finished goods/the alleged private records is a crass failure to investigate the matter properly. 5.4 Further reliance on the statement of the buyers that they used to receive goods without cover of invoices also, without independent substantiation and cogent proof in support, is fraught with risk and is required to be corroborated by other factual assertions. This has not been so done in the present matter. Therefore, acceptance of the testimony of buyers merely on its face value is inappropriate and cannot be sustained in law. A half baked investigation cannot catapult the department to affix the grave charge of clandestine manufacture and clearance in the absence of evidence to back it up and ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been denied natural justice and were not offered cross-examination of the witnesses/buyers whose statement have been relied upon by the Department. I find that this request of the appellant, which is an important cannon for ascertaining the truth and justice delivery, has been cursorily brushed aside by the lower authorities. It is noted that both at the time of original adjudication and again in appellate proceedings, the appellant sought to cross-examine their buyers, who purportedly had stated in their statement, recorded before the authorities that they were supplied biris by the appellants without invoices. Cross examination is a substantive legal tool adopted in order to bring to the fore the truth and corroborate the testimonies of the witnesses to establish the contention beyond any measure of doubt. 8. It is settled law that the noticee has to be offered all reasonable opportunity of defence and any levy fastened denying natural justice is clearly unsustainable. As discussed herein above, the twin facets of non-supply of certain records more particularly DSA inform RG-12A and the lack of opportunity of cross examination of the witnesses are in clear violation of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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