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TMI Blog2015 (7) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 (5) TMI 606 - GUJARAT HIGH COURT] it has been held by Hon ble Gujarat High Court that in the absence of other corroborative evidences confessional statements along are not sufficient to establish the case of clandestine manufacture and removal. - case of clandestine manufacture and clearance is not established against the appellant - Decided in favour of assessee. - Appeal No. E/459-463/2009 - Order No. A/ 10905-10909/2015 - Dated:- 30-6-2015 - Mr. H.K. Thakur, Hon ble Member (Technical),J. For the Appellant : Shri Alok Bhartwal, Advocate, Shri R.K Jain, Advocate For the Respondent : Shri Alok Srivastava, Authorised Representative ORDER Per: H.K. Thakur These appeals have been filed by the appellants with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all the instructions were obtained from Shri Sanjay V. Deora, Director of M/s. Sampat Aluminium Pvt. Ltd. but, when statements of Shri Sanjay V. Deora were our recorded by the investigation. That without giving any opportunity of explaining the case under the statement a penalty of ₹ 10,00,000/- has been imposed upon Shri Sanjay V. Deora. That statement of Shri Amit V. Shukla and Smt. Sneha S. Deora, Directors of the main appellant were also not recorded which is not sustainable as there is no evidence that these directors were in any way concerned with any clandestine activity. It was again argued by the Learned Advocate that other than two confessional statements, which were also retracted, there is no evidence available in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contractors was mentioned. That the retraction made by these persons after giving confessional statements is only and after thought and cannot be considered that statements given by these persons are not liable. Learned AR therefore, formally the defended the orders passed by the lower authorities. Learned AR made the Bench go through Para 14.2 and 14.4 of the O.I.A Dated 25.11.2008 passed by the first appellate authority. Regarding imposition of penalties, it was argued that all the persons concerned well aware of the clandestine activity being done and penalties have been correctly imposed. 4. Heard both sides and perused the case records. It is observed from the case records that duty has been demanded with respect to alleged clandes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a were recorded during investigation in order to ascertain the correct Customers and Sources of raw materials purchased etc. It is now a well understood principle that a case of clandestine activity cannot be established simply on the basis of few confessional statements, which are retracted by the persons. In the case of Commissioner of Central Excise vs Saakeen Alloys Pvt. Ltd. 2014 (308) E.L.T. 65 (Guj.) it has been held by Honble Gujarat High Court that in the absence of other corroborative evidences confessional statements along are not sufficient to establish the case of clandestine manufacture and removal. Observations made by Honble High Court in Para 4,7 to 10 of this case law, on facts and law, are relevant and are reproduced be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount, ₹ 1.85 Crores [rounded off] was based on the data contained in the note-books and pen drive recovered from Messrs. Sunrise Enterprises and remaining ₹ 8.50 lakhs [rounded off] from the parallel invoices recovered from the office of the transporter - M/s. Khodiyar Transport Services. 7. As can be noted from the decision of the Tribunal, it has extensively dealt with the entire factual matrix presented before it. The Tribunal rightly concluded that in the case of clandestine removal of excisable goods, there needs to be positive evidences for establishing the evasion, though contended by the Revenue. In absence of any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal elaborately and very correctly dealt with the details furnished by both the sides and rightly not sustained the demand of ₹ 1.85 Crores, which had no evidences to bank upon. Confessional statements solely in absence of any cogent evidences cannot make the foundation for levying the Excise duty on the ground of evasion of tax, much less the retracted statements. To the extent there existed substantiating material, Tribunal has sustained the levy. No perversity could be pointed out in the approach and treatment to the facts. 5. The case before High Court was where some note books and pen drive were also seized. The case of the appellants is on much stronger footing when none of these evidences are available.In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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