TMI Blog2023 (8) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... is own handwriting, therefore the allegation that the Chit shows clandestine clearance of goods is not established as per the said Chit - the demand on the basis of Chit is not sustainable. It is found that the goods were received from Railway Authorities, which has been properly accounted for by the appellant - it is further noted that it is alleged that the appellant has removed 27653.657 MT of sponge iron on the basis of the loose slips recovered from the premises of M/s Sen Brothers Enterprises - on going through the said documents, but the Revenue has failed to establish that who is the author of the said documents and entries therein. Only the Author of the documents can say about the contents of the documents. Those documents were not recovered from the premises of the appellant. The documents recovered from the premises of the third party cannot be the basis to allege the clandestine removal of the goods. The Revenue has not come up with any conclusive evidence to establish the clandestine clearance of goods in question - the demand has been raised on the basis of documents recovered from the third party premises whose Author is not known and from the person to whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e premises of M/s Sen Brothers Enterprises, some private documents were recovered and seized. Statement of Shri Sisir Mondal, Employee of M/s Sen Brothers Enterprises was recorded and he stated that the documents seized were related to the appellant and were prepared for keeping records. 2.1 On 08.07.2010, the statement of Shri Swapan Kumar Sen, employee of M/s Sen Brothers Enterprises and Ex-Director of the appellant, was recorded. 2.2 On 11.10.2010, the statement of Shri Bijoy Kumar Bhalotia, Director of the Appellant Company was also recorded, who expressed his inability to answers the questions without consulting the verification of records. 2.3 From the records recovered from the premises of M/s Sen Brothers Enterprises, it was allegedly found that the appellant has maintained records of clearance for a particular period giving details of the Party s name, dates, vehicle numbers, reflecting clearance of the goods. It was further alleged that there were records showing maintenance of receipts and payments and income and expenditure for some payments. The Officers of the Department prepared a statement showing consumption of electricity for manufacture of sponge iron. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the showcause notice and no entries in the statutory records tallies with the entries in the private records. 3.1 To support his contentions, he relies on the following decisions : 1. Star Alloys Chemicals Pvt. Ltd. : 2019 (21) GSTL 174 (Tri. Del.) 2. Raipur Forgings Pvt. Ltd. : 2016 (336) ELT 297 ( Tri. Del.) 3. Triveni Engineering Industries Ltd. : 2016 (334) ELT 594 (All.) 4. T.G.L. Poshok Corporation : 2002 (140) ELT 187 (Tri. Chennai) 5. Continental Cement Co. : 2014 (309) ELT 411 (All.) 6. A.R. Shanmugasundaram : 2016 (333) ELT 158 (Tri. Chennai) 7. Gopi Synthetics Pvt. Ltd. : 2014 (302) ELT 435 (Tri. Ahmd.) 8. Super Smelters Ltd. : 2020 (371) ELT 751 (Tri. Kol.) 9. Jai Balaji Industries Ltd. : 2021 (378) ELT 674 (Tri. Kolkata) 10. Nidhi Auto Pvt. Ltd. : 2020 (33) GSTL 419 (Tri. All.) 11. Nestle India Ltd. : 2009 (235) ELT 577 (S.C.) 12. Globe Rexine Pvt. Ltd. : 2006 (203) ELT 532 (Tri. Chennai) 13. Gurmeet Singh : 2014 (312) ELT 689 (Tri. Del.) 14. Madurai Metal Industries : 1991 (52) ELT 495 (Mad.) 15. Siemens Ltd. : 2007 (207) ELT 168 (SC). 4. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after Central Excise matters was asked to prepare weighment slip showing 133.05 MT and arrived at shortage of the aforesaid quantity. The said weighment was shown as weighment of Iron Ore, but the statement was recorded of Shri N.C.Roy, who in his Affidavit, stated that no weighment was made. The appellant has also given a letter dated 07.05.2010 showing sale of sponge iron of 2912.580 MT before visit of the Officers of the Department, which was not considered. By another letter, the Director of the appellant explained the details of the goods in the factory and the manner of stock verification on the basis of eye estimation was pointed out, but there is no rebuttal from the Department to that effect. 10. We find that the goods were received from Railway Authorities, which has been properly accounted for by the appellant. We further take note of the fact that it is alleged that the appellant has removed 27653.657 MT of sponge iron on the basis of the loose slips recovered from the premises of M/s Sen Brothers Enterprises. 11. We have gone through the said documents, but the Revenue has failed to establish that who is the author of the said documents and entries therein. Only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), this Tribunal held that to allege clandestine removal of goods, there should be clinching evidence in the nature of purchase of raw materials and removal of final product and there should be an investigation to that effect.. 18. Further, in the case of A.R.Shanmugasundaram (supra), the Tribunal held that it is settled law that the charge of clandestine removal is not sustainable merely on the basis of statement and private records unless corroborated with other evidences. 19. Further, in the case of Gopi Synthetics Private Limited (supra), this Tribunal held that onus to prove clandestine removal of goods and the same is required to prove by sufficient evidences and cannot be decided on the basis of some documents, which is the only piece of evidence, which may at best create a suspicion but not full proof of evidence. 20. We further take note of the fact that in the case of Super Smelters Limited (supra), this Tribunal held that the charges of clandestine removal of goods cannot be upheld merely on assumption and presumption but ought to be proved with positive evidence such as, purchase of excess of raw-materials, consumption of excess electricity, employment of extra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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