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TMI Blog2013 (11) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm was not interrogated to know the facts - absence of Adjudication based on the statements only of witnesses who could not be cross-examined, coupled with total lack of any corroborative evidence, not sustainable as legally statements of such persons who failed to submit themselves for cross-examination could not be accepted or taken into evidence. Undervaluation of Papers – Lack of evidence – Held that:- Following CCE Meerut v/s Raman Ispat (P) Ltd.[ 2000 (7) TMI 118 - CEGAT, NEW DELHI] - Allegations in show cause notice based on a private note book seized from the factory premises -No evidence collected in support of the alleged receipt of inputs and the presumed manufacture in excess of the recorded figures Writer of the diary n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted various checks and verifications. As a result, shortage of 30 bundles of finished goods valued at Rs. 37,388/- was found involving duty of Rs.11,619.33 and cess of Rs. 57.40. The respondents admitted the shortage and also paid the duty leviable thereon. 4. In addition, certain records were resumed by the officers on 24.7.1996 as also on 30.7.96. On scrutiny of the said records, the officers entertained a view that 24 MT of papers were cleared by the appellant to M/s. Uttam Cottage Industries, Calcutta, without payment of duty inasmuch as though proforma invoice was made but there was no proforma GR. In addition, the officers also entertained a view that respondents were engaged in the under-valuation of their finished goods clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 14 wherein he has very categorically admitted that the G.Rs. in question had been issued by him and paper had been dispatched on these G.Rs. In view of the admission of the transporter and in the absence of corresponding invoices evidencing payment of duty, the adjudicating authority has held that the charge of clandestine clearance stand proved as alleged in the notice. On the other hand the appellants plea that the finding is unsustainable for the reason that on the invoice it is clearly stated that it is a proforma invoice and not a sale invoice. Under the law of West Bengal, a proforma invoice and GR are required to be sent to the customer in advance for obtaining an entry permit from the concerned department. Although on the GRs t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogated to know the facts. In case of Takshila Spinners v/s CCE-2001 (131) ELT 568, Hon'ble Tribunal has held that: Adjudication Demand- Clandestine Removal-Evidence-Statements, cross-examination, corroboration, absence of Adjudication based on the statements only of witnesses who could not be cross-examined, coupled with total lack of any corroborative evidence, not sustainable as legally statements of such persons who failed to submit themselves for cross-examination could not be accepted or taken into evidence. In view of the above discussions, the charge of clandestine removal of gods by the appellant is not sustainable. 8. As against the above, Revenue is not disputing that as per the law, proforma invoice and GRs are required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants submission that somebody might have planted the file in order to harass them is not acceptable. Accordingly, he held that the appellants deliberately disown Shri Rajesh Kumar Goel, its Marketing Manager. The appellants plea that Shri Rajesh Kumar Goel was never in service with the appellants. Further, file containing different types of misc. papers, some unsigned rough calculations which cannot be relied until and unless are signed, do not relate to the appellants unit, as already told by the Director Shri S.K. Jain, on 16.10.2000 at the time of giving statement before the Superintendent (Prev.). Further plea of the appellant that neither the dealers as per Annexure B enclosed with show cause notice to whom the goods were sold at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icity of the seized private note books and for failing to trace/examine material witnesses. The law laid down in these cases very aptly covers the present case in hand, in the light of facts and circumstances detailed above. In view of the above, the charge of undervaluation is not sustainable. The appellants have also contested that the extended period of five years is not invokable in their case. Since the word willful is omitted before the word suppression or mis-statement in the notice to show case, the extended period is not invokable. They relied upon the decisions of CCE V/s Kandivali Metal Works -1998 (104) ELT 18 (T) and Cosmic Dye Chemical V/s CCE -1995 (75) ELT 721 (SC). In the said judgment the Hon'ble Supreme Court has held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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