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TMI Blog2017 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... Chopra has also given different interpretation of the figures contained in two recovered slips. If the later explanation is taken into account, the entire duty demand becomes unsustainable. The allegation of clandestine clearance is to be established by the Revenue on the basis of tangible evidence. Before sustaining the allegations, the same needs to be corroborated and supported by detailed investigation. We find that no investigation has been conducted into the procurement of additional raw material required for manufacture of such huge quantity of goods alleged to have been clandestinely cleared - Nothing has been brought on record regarding payment received for such clandestinely cleared goods. Some cash has been seized from the resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 8 lakhs was recovered from the residence of Shri Vinod Agarwal, Director, which was also seized on the ground that it was the sale proceeds of the goods clandestinely removed by the appellant. Statements were recorded during the course of investigation from Shri Rohit Aggarwal, Director, and Shri S K Chpora, employee of the appellant company. Show cause notice dated 17.3.2006 was issued proposing confiscation of the seized goods as well as seized Indian currency and for imposing various penalties under various provisions. 3. During the course of investigation, the seized records were scrutnized and several statements were recorded from persons connected with the appellant company. In particular the following records were seized: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Chopra before the adjudicating authority, he has deposed that his earlier statement was recorded under threat of arrest and were not given voluntarily. In his explanation of figures appearing in the slips, he has submitted that the first figure indicates level of oil in the tank; the second figure indicates temperature of the furnace and the third figure indicates oil level in the underground oil tank. Accordingly, the submission of the appellant is that the very basis adopted by the Revenue to quantify production in the order is wrong. 6. Now we take up discussion of 102 slips found in the factory and which are being relied upon by the Revenue to confirm the demand of about ₹ 30 lakh. The appellant has strongly opposed such demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has simply rejected the deposition as an after thought. The appellant has also alleged that the value adopted for working out demand has been taken as abnormally high. 8. The show cause notice has worked out the demand by taking the value of the finished product as ₹ 225 per Kg whereas in the seizure panchnama dated 21.9.2005, the value has been taken as ₹ 170 per Kg. They have submitted that in case demand has to be confirmed, the lower value may be adopted and same may be considered as cum duty price. 9. Learned DR on the other hand, reiterated the findings of the Commissioner. 10. We heard Shri J P Kaushik, learned Advocate appearing for the appellant and Shri R K Manjhi, learned DR appearing for the Revenue. 11. The Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand becomes unsustainable. 12. We find that the duty demand of such a huge amount has been made only on the basis of two slips and supporting statements, which have been retracted. In the cross examination, the witness has given an entirely different explanation. In the circumstances, the documentary evidence recovered from the factory in the form of three slips containing a few figures is to be considered as untrustworthy. The allegation of clandestine clearance is to be established by the Revenue on the basis of tangible evidence. Before sustaining the allegations, the same needs to be corroborated and supported by detailed investigation. We find that no investigation has been conducted into the procurement of additional raw material r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining the duty demand have not been corroborated by detailed investigations. The allegation of clandestine manufacture and clearance cannot be sustained on the basis of such flimsy evidence. We also find goods have been seized from factory on the date of search. 15. Some cash has been seized from the residence of Director which is alleged to be the sale proceeds of clandestinely cleared goods. Once the allegation of clandestine clearance is not sustained, there is no justification to confiscate the seized goods and currency. Revenue has not advanced any evidence to prove that the cash seized is sale proceeds of clandestinely cleared goods. Consequently, we hold that seizure is without justification. 16. In view of the above, the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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