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TMI Blog2024 (12) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... jendra Prasad Gupta, Indian currency amounting to Rs. 6,20,000/- was recovered and the same was seized by the officers of Revenue. During the course of search in the factory premises of the appellant-assessee, the officers detected shortage of 3500 Kgs of copper scrap valued at Rs. 3,85,000/-. Some records were also resumed by the officers from the factory premises of the assessee. Amongst the documents seized, spiral notebook "AUTHOR" [RUD 2] was recovered from Shri. Girish Chand, Production/Labour Supervisor of the respondent. The file having sixty eight loose papers [RUD 3], two Spiral Neelgagan Notebooks [RUD 4 and 5], Neelgagan duplicate notebook [RUD 6] and Neelgagan slip pad [RUD 7] were recovered from Shri. Devender Kumar Sharma, supervisor of the respondent. 3. The statements of various persons were recorded. On the basis of investigation, the Department issued a Show Cause Notice ['SCN'] dated 20.03.2006, seeking confiscation of Indian currency on the ground that the said currency was the sale proceeds of the goods cleared clandestinely. 4. On the basis of documents recovered from the factory of the assessee and the statements recorded, the assessee was served with anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not properly examine and appreciate the evidence, fundamental to the case of the appellant. It is submitted that it is not feasible and not necessary to produce the evidence from the beginning to the end that is from the stage of surreptitious procurement of raw material, its utilization in the manufacturing of unaccounted finished goods, suppressed production of finished goods and clearance thereof. However, sufficient evidence showing surreptitious movement of raw material and clearance of unaccounted finished goods by respondent has been placed on record, which is corroborated by private records recovered from the possession of the employees of the company. It is the contention of the Revenue that since the documents were recovered from the possession of the employees of the company, the burden to prove that the documents based on which the demand was raised in SCN were not pertaining to respondent was on the assessee, to which they miserably failed. It is also argued that the Tribunal has erred in not appreciating the contents of the documents pertaining to the respondent and ignoring the statements of witnesses, substantiating the charges in the notice. It has also been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. Suspicion, howsoever grave, cannot replace the test of proof. 15. Appellant's case is that during the course of stock verification of raw material (copper scrap), the officers found shortage of about 3500 kgs. Stock verification was questioned before the Original Authority by the respondent, contending that the assessment was based on estimation by visual survey and not by actually weighing the copper scrap. Original Authority ruled that Panchnama bore the signatures of Authorized Representative of the respondent and therefore respondent cannot question the stock verification. However, CESTAT did not accept the said view and in Para No. 6 observed as under:- "6. The case of un-accounted clearance against the appellant-assessee was sought to be supported mainly on the basis of certain documents recovered from Shri Girish Chand and Shri Devinder Kumar Sharma, stock verification of copper scrap and statements of certain person including these two individuals. It is contented that during the course of stock verification of raw material (copper scrap) the officers found shortage of about 3500 Kgs. The methodology adopted for stock verification is questioned by the appellant-asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takes 8 to 9 hours. Even if the furnace is operated round the clock, it is not possible to have more than 3 heats in a day. The diary maintained by Shri Girish Chand indicated in some pages four bhattis against some dates. Even five bhattis are also mentioned. Apparently, such entry cannot be taken as heat, as it is not possible to have, more than three heats per day. This puts serious question mark on the reliability of record maintained by Shri Girish Chand to support the allegation of clandestine manufacture of copper ingots. The appellant-assessee indicated that the records maintained by Shri Girish Chand as a labour contractor is with reference to number of labourers working per heat in the appellant - assessees' unit. We find that these basic facts were not examined in right prospective and commented upon by the original authority. This has significantly weakened the case of Revenue." 18. With regard to the value of retracted confession, the Hon'ble Supreme Court in the case of Vinod Solanki vs Union of India, 2009 (233) ELT 157 (SC), held that- 24. However while the Ld. Member (Technical) has recorded that each of them retracted their statements, the retractions are b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court pointed out that there needed to be positive evidence to establish evasion. It was observed as under:- "In absence of any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consumption of power like electricity, seizure of cash, etc., the Tribunal noted and held that there was nothing to bank upon except the bare confessional statements of the proprietor and of some of the persons connected with the manufacturing activities and such statements were retracted within no time of their recording. The Tribunal also noted the fact that the requisite opportunity of cross examination was also not made available so as to bring to the fore the true picture and therefore, it concluded against the Revenue observing that not permitting the cross examination of a person in-charge of records of M/s. Sunrise Enterprises and absence of other cogent and positive evidences, would not permit it to sustain the demand of Rs. 1.85 Crores raised in the Demand notice and confirmed by both the authorities below." 21. The Special Leave Petition filed by the Department against the said order being SLP (Civil) (CC No. 19304-07 of 2014) has been dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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