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TMI Blog2017 (1) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14.06.2003, a search was conducted in the premises of M/s. Super Steel Rolling Mills, Raipur who is one of the buyers of appellants wherein he has stated that they received non alloys goods from the appellant involving duty amounting to Rs. 1,20,425/-. Thereafter a search was conducted in the factory premises of the appellant on 25.07.2003 wherein some storage of finished goods 4.062 MT was found which involved the duty of Rs. 40,568/-. During the search one note book was found in the dickey of Hero Honda Motor cycle owned by Shri Sarat Kumar Das (the supervisory of labour contractor of the appellant, Shri Purna Ramdas ). The statement of Shri Sarat Kumar Das was also recorded who stated that the note book contains the details of loading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the appellants. Aggrieved from the said order, the appellants are before us. 3. The Ld. Advocate for the appellants submits that the whole case is based on the statement of Shri Sarat Kumar Das and the note book recovered from his custody. He submits that Shri Sarat Kumar Das has retracted his statement within 48 hour through a duly sworn affidavit before notary public. The said affidavit was on record and the veracity of truthfulness of the affidavit has not been tested by the adjudicating authority, therefore, the affidavit filed by Shri Sarat Kumar Das is having evidential value and the same cannot be brushed aside in the light of the decision of the Hon'ble Apex Court in the case of Mehta Parikh Company reported in A/R 1956 SC 554 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice that the appellant has received sponge iron and scrap during the said period but there were no efforts were made to ascertain the facts from whom the said goods were received and how the payments were made to the suppliers of these goods. He further submitted that it is alleged that as per the note book the appellant had cleared a quantity of 1943.044 MT of non-alloy steel on payment of duty. Infact, the appellant had cleared total quantity of 8959.975 MT of MS ingots during the said period. Therefore, the said note book cannot be relied upon to allege clandestine removal of goods. He further submitted that in the note book, it has been alleged that the appellant had received 2009.371 MT of sponge iron, the said quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the case of the Revenue is based on the note book recovered from the possession of Shri Sarat Kumar Das (Supervisor of Shri Purna Ramdas Labour Contractor) and the various statements. 7. We have seen that Shri Sarat Kumar Das has retracted his statement by way of affidavit which was filed before the department and the adjudicating authority has not considered the retraction made by Shri Sarat Kumar Das by way of affidavit. Infact, Shri Sarat Kumar Das has filed the affidavit which is having a evidential value and without examining the contents of the affidavit, the adverse interference cannot be drawn as held by Hon ble Apex Court in the case of M/s. Mehta Parikh and Company (supra) wherein Hon'ble Apex Court observed as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigate the contents of the note book with M/s. Bhiwani Casting or M/s. Bhiwani Metals. Moreover, the labour contractor Shri Purna Ramdas was also not confronted with the note book. We also take note of the fact that the said note book was not confronted with the authorized signatory of the appellant and no inculpatory statement has been given by Shri Sarat Kumar Jain and the statements of Shri Vikas Agarwal and Vijay Agarwal were not recorded. 9. We also take note of the fact that during the course of investigation, some shortage of finished goods were found for which duty works out to Rs. 40,568 and the same has been admitted therefore, the demand on that account is confirmed along with the interest and equivalent amount of penalty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, such as L. Rs, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; v. Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the consign or its disposal. No such evidences to the above effect has been brought by the Revenue on record therefore, the demand is not sustainable against the appellant alleging clandestine removal. Moreover, we also take note of the fact that pilot experiments were conducted to ascertain the electricity consumption for manufacturing of One MT of MS ingot twice and same were found in order therefore, Revenue has failed to establish how the goods were manufactured in the factory of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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