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TMI Blog2016 (10) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... be time barred. The Commissioner (Appeals) order setting aside the demand is not proper. The demand is based on evidence which stands admitted by Director on records recovered from the assesses factory. There is nothing on record to the effect that statements relied upon have been extracted under duress. The Director also has voluntarily stated that he is satisfied with the manner of stock taking and search - in present case the demand is on the basis of private records seized in search and which have been admitted by the Director himself as pertaining to clandestine clearances. I also find that duty also stands demanded only on those clearances which are not covered by invoices. Demand justified - appeal allowed - decided in favor of Revenue. - Appeal No. E/61/2009-EX [SM] - Final Order No. 54034/2016 - Dated:- 7-10-2016 - Mr. V. Padmanabhan, Member (Technical) Shri G.R. Singh, DR For the appellant Ms. Rinky Arora, Advocate For the respondent ORDER Per Mr. V. Padmanabhan The present appeal filed by Revenue is against the order dated 19.9.2008 passed by the Commissioner (Appeals), Raipur. The assessee is a manufacturer of iron and steel items such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the checks, loose papers, kacha papers and other documents like notebooks were recovered by the officers, Shri S.N. Sharma, the authorised person, deposed in his statement dated 7.6.2003 that the resumed papers were related to date wise receipt of raw material as well as despatches. Thereafter, statement of Shri N.P. Tekriwal, Director of the unit, was recorded in which he admitted that some goods were despatched without payment of duty and without cover of invoices. He also showed his satisfaction with the method of verification of stock. 5. Out of the records recovered by the departmental officers, some of the documents pertained to M/s Hi-Tech Abrasives Ltd. a sister concern of the assessee. Shri Tekriwal was also the Director of M/s Hi-Tech Abrasives Ltd. Private documents in the form of six notebooks were recovered out of which one notebook pertained to M/s Hi-Tech Abrasives Ltd. whereas notebooks no. 2 to 6 pertained to assessee. Separate proceedings stand initiated against M/s. Hi-Tech Abrasives on the basis of Note book No.1. When officers carried out cross verification of the entries found in notebooks 2 to 6 as well as invoices on record it was observed that som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the case was challenged before Commissioner (Appeals) he set aside the demands on the following grounds: (i) There is not enough evidence of clandestine removal of goods. (ii) No investigation has been conducted either with the recipient of the goods allegedly cleared clandestinely. The procurement of additional raw materials for manufacture of such finished products also has not been undertaken. (iii) The case is based solely on the confessional statement of Shri N.P. Tekriwal, Director of the assessee. This statement is related to chart shown to him and not related to evidences i.e entries made in the note books recovered by the officers. (iv) There are errors in the chart prepared by the Revenue. These errors are highlighted by the assessee before Commissioner (Appeals). (v) The matter is time-barred. 9. The appeal filed by Revenue seeks to set aside the Order-in-Appeal and to reinstate the Order-in-Original of confirmation of duty. The main grounds on which the impugned order has been challenged by Revenue are as follows:- (i) The demand has been raised based on the loose papers, kachcha papers, and private note books recovered from the possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile arriving at the quantum of goods allegedly removed without payment of duty. They relied upon these following case laws:- (i) CCE, Bangalore Vs. Pragathi Concrete Products (P) Ltd. [2015 (322) ELR 819 (SC)] (ii) Blue Star Ltd. Vs. Union of India [2015 (322) ELT 820 (SC)] (iii) CCEST, Vs. Triveni Engineering Industries Ltd. [2015 (317) ELT 408 (All.)] (iv) CCE, Nagpur Vs. Hyundai Unitech Electrical Transmission Ltd. [2015 (323) ELT 220 (SC)] (v) Caprihans India Ltd. Vs. CCE, Surat [2015 (324) ELT 8 (SC)] (vi) Aswani Co. Vs. CCE, Delhi-I [2015 (327) ELT 81 (Tri.-Del.)] 12. I have carefully perused the case records as well as the submissions made by ld. DR as well as ld. Advocate appearing for the respondent. The case originated with the verifications undertaken by the departmental officers on 6.6.2003 during their visit to the factory. The verification of stock of raw materials as well as finished products resulted in shortages detected in the stock of raw materials as well as finished products. The manner of stock taking was to the satisfaction of Shri N.P. Tekriwal, Director who was present throughout the proceedings. The shortages also stand admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Such statement is admissible as evidence as has been held by the Apex Court in the case of Systems Components Pvt. Ltd. (supra). The activities of clandestine nature is required to be proved by sufficient positive evidence. However, the facts presented in each individual case are required to be scrutinized and examined independently. The department in this case has relied upon the confessional statement of the Director which is also supported by the mentioned entries in the private records. There is no averment that the statement has been taken under duress. The assessee also does not appear to have asked for cross-examination during the process of adjudication. 15. In view of the foregoing, I find that the Commissioner (Appeals) has erred in taking the view that there is not enough evidence of clandestine removal of goods. Even though the statement of Shri Sanjay Kejriwal, who is said to be the author of the private records recovered has not been recorded, it stands admitted by Shri Tekriwal, Director about the truth of the contents of the private notebooks. Consequently, I find no reason to disallow this piece of evidence. 16. The evidence of clandestine clearance has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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