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TMI Blog2015 (12) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The Commissioner (Appeals) and the Tribunal ought to have relied upon the statements of the proprietors which were not under inducement or threat. - The fact of clandestine removal of goods had not been proved. Mere quoting the statements of the proprietors and some of their employees was not enough. The value of clandestinely removed goods had not been adjudged. - view adopted by the Commissioner (Appeals) and the Tribunal is a plausible view based on appreciation of material on record and, therefore, does not warrant any interference by this Court - Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 17,37,954/- on M/s Jagatjit Agro Industries. Similar amount besides penalty was imposed upon M/s Saron Mechanical Works. Aggrieved by the order, both the respondents preferred their separate appeals before the Commissioner (Appeals) who vide order dated 10.8.2007, Annexure A.3 allowed the appeals and set aside the order dated 7.8.2006. Not satisfied with the order, the department filed appeal before the Tribunal. Vide order dated 10.2.2014, Annexure A.4, the Tribunal dismissed the appeal holding that units of both the respondents were separate to each other as M/s Saron Mechanical works was working since the year 1994 whereas M/s Jagatjit Agro Industries had started working in the year 2001. Hence the instant appeals by the revenue. 4. We have heard learned counsel for the parties. 5. Learned counsel for the appellant-revenue submitted that the Tribunal failed to appreciate that the proprietors of both the units had not retracted from their statements as well as of their Accountant and Store Incharge made before the search team. Both the respondents had stored the raw material without maintaining any separate record regarding their respective manufacturing of boring machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it M/s Saron Mechncial Works (appellant No.2) owned by the father of Shri Jagatjit Singh, Prop. of the appellants No.1 firm. As per facts on record, during the visit on 10.6.2003 by the Central Excise officers to the appellants' units, some slips pads and loose slips relating to the appellants No.1 and 2 were recovered. The statement of one Shri Roji Thomas, was recorded on 10.6.2003 wherein he had stated that he was looking after as Store in charge in the appellant No.2 since 1.7.2001 and was also looking after the work relating to quality control of machines sold by the firm; that he was also Store in charge and quality controller of appellant No.2 because both the above firms had common raw material storage. The allegation of clandestine manufacture has been based on under mentioned grounds (1) manufacture and sale of 83 boring machines having value of ₹ 66,00,000/- and these slip pads were issued mostly by one Shri Pala Ram and in some cases issuing person not known as detailed in Annexure 1. The date of issue was not mentioned on these slip pads but these have been considered for the year 2002-03. (2) Manufacture and sale of 13 Boring Machines valued ₹ 16,25,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce that either author of the loose slips was unknown or it was Shri Pala Ram whose role has not been proved by any evidence. In these circumstances rather no evidence either to the effect that who has prepared/authored these loose slips or by whom these machines were made, had been brought on record, it is difficult to hod that the said machines were manufactured and removed by the appellants in a clandestine manner. For placing reliance on such records i.e. loose slips it is necessary that at least author of these slips should have been examined and their statements should have been recorded supporting the charge that they have prepared these slips. In respect of Annexure VII which carries the details of loose slips there is no mention of persons who or by whom these slips were issued rather whom these slips were issued rather this annexure bears a column "Name of contractor" wherein certain name e.g. Labh and Jassi, Anwar and Jassi etc. have been mentioned. No statements of such persons have been brought on record in support of charge of the revenue that the machines mentioned as per this annexure were manufactured by them as discussed above. Further, these annexures a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne removal and duty demand in the show cause notice. But the adjudicating authority has not discussed the annexures and their authenticity for confirming the demands." 8. The Tribunal upheld the findings recorded by the Commissioner (Appeals). The relevant findings recorded by the Tribunal read thus:- "5. After hearing both the sides, I find that admittedly M/s Saron Mechnical Works was established in 1994. the same cannot be held a dummy unit of M/s Jagatjit Agro Industries, which was established in 2001. A unit which was already working for almost six to seven years cannot be held to be a dummy of another unit which is yet to come into existence. Otherwise also, I find that it is not the revenue's case that both the units are not having complete machinery so as to manufacture the goods in question. Merely because a common electricity connection was used by both the units by itself will not make it a dummy of one another. Similarly, a common accountant or a common store room for raw materials cannot be held to be a reason for clubbing the clearances of both the units when there is no dispute about both the units being complete in themselves and manufacturing go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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