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TMI Blog2017 (6) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... excessive raw materials, from the discussions made as above, we have to say that there is no cogent evidence to establish that such huge quantity of raw materials was obtained by them. Consequently, we have to say that the allegation that they removed finished goods clandestinely without payment of duty, also does not sustain. In a large number of cases, it has been held that unless there is clinching evidence to establish clandestine removal, the demand cannot be confirmed solely on the basis of private records. Such private records have to be corroborated by evidence other than statements. Charge of clandestine removal being serious charge, the same has to be proved to a possible extent even though evidence to a mathematical precision may not be possible. Appeal dismissed - decided against Revenue. - E/382/2006 - Final Order No. 41020 / 2017 - Dated:- 20-6-2017 - Ms. Sulekha Beevi C.S., Member ( Judicial ) And Shri V. Padmanabhan, Member ( Technical ) Shri S. Govindarajan, AC (AR) for the Appellant Shri S. Venkatachalam, Advocate for the Respondent ORDER Per Bench The respondents are having factories at Puducherry as well as at Chennai. Based on intel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) went wrong in holding that entries in these sheets does not tally or give any details with respect to the statements made by transporters or the documents maintained by the respondents. 2.3 With regard to the allegation of four unaccounted clearances made on 25.6.2003, the Commissioner (Appeals) held that there is no corresponding investigation done at M/s.Bhuwalka Industries as to whether they have received the goods alleged to have been clandestinely removed by the respondents. That merely on the unsigned sheets of paper in which some vehicle numbers etc. is mentioned, it cannot be construed that the goods were removed clandestinely. That when the said documents recovered from the premises shows the vehicle numbers as well as entries relating to the transporters, the Commissioner (Appeals) ought not to have disregarded these documents stating that these are private records and not reliable without corroborative evidence. 2.4 The department had recovered documents from various transporters namely M/s. Tamilnadu Andhra Transport (TAT), Puducherry, M/s. Ravi Lorry Transport (RLT) and M/s. STR Lorry Transport (STR), Puducherry. Statements of all these trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimation of the stock lying in the premises. The mahazar was drawn at the factory premises and the weight of the MS ingots was arrived in the mahazar merely on approximate weight of MS ingots. That respondents used different types of mould to manufacture MS ingots of different sizes and different weights. Therefore, the shortage concluded by the officers merely on eye estimation cannot be accepted and has been rightly rejected by the Commissioner (Appeals). 3.3 With regard to entries in sheet No. 255, it is submitted that the said sheet was not recovered from the respondent s factory. This handwritten sheet does not belong to any of the respondent s staff and the same has not been proved. A cursory perusal of the sheet would reveal that the same was written by one person on a single day and not written over a period of four months as alleged by the department. Further, it is beyond logic that a bit of paper pertaining to the year 2000 is preserved till 2003 in the hands of the respondent. That Commissioner (Appeals) has rightly analyzed the entries in this sheet basing on accounts maintained by the respondent as well as their clarifications submitted and held that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly set aside the demand. 3.9 With regard to the allegations based on the notebook maintained by the transport agents, it is explained by the respondent that they call lorries directly or through commission agents. But some lorries come on their own and on certain occasions the respondent may not use the lorries and the drivers may go back and book load from nearby units. It also happens that the respondent cancel the dispatch due to various logistical problems. In any event, the commission agent would get his commission from the lorry owner even though the goods are not dispatched for various above reasons. Merely because the lorry owner has not corrected his documents with regard to the load taken from other manufacturers, the respondents cannot be alleged to have cleared unaccounted finished products. 3.10 The dispatch register maintained by TAT was relied by the department to raise the show cause notice whereas no lorry receipts were recovered. This was the case with other transporters also. That the Commissioner (Appeals) has rightly analyzed the documents submitted by the respondents and set aside the demand. 4. We have heard both sides and perused the records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to get such huge stock weighed. When there is no physical stock taking by weighing the stock, we have to agree with the findings of the Commissioner (Appeals) that no credence can be placed on such eye assumption of the stock. This cuts the root of the department s case as the stock to be compared with the accounts and documents recovered is an assumptive figure. 8. The main evidence relied upon by the department is Sheet No. 255 recovered from the respondent s factory. The respondents have strongly objected to this document stating that the same has not been recovered from their factory. This document has been, adverted to by the learned counsel, stating that the handwriting in this document would show that it is written in a single day and not from a length of four months. When the respondent has disputed such document, it is for the department to establish by cogent evidence as to who maintained this document and how it has been maintained. No statement has been recorded from any of the employees as to how this document has been maintained. In view thereof, we find that the Commissioner (Appeals) has rightly held that such document being a private document and not being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. precisely, of the alleged clearances for this period is very true and correct and has been rightly recognized by the Commissioner (Appeals). It is not possible for a person to prepare the list with date, lorry number and destination for such huge transactions for a period involved from 1.1.2002 to 23.6.2003 on a much later date which is after more than one year. No documents were recovered from the lorry owners / drivers apart from those from the commission agents as stated above. The very same analysation of evidences is applicable with regard to the GVR recovered from STR as well as RLT. The Commissioner (Appeals) has concluded his finding with regard to the evidences of the transporters as under:- I find that all the documents recovered from the transporters inter alia contained the date, destination and vehicle number. However, the exact quantity removed and value of the goods consigned were not available. For a particular period in respect of GVR book of STR, the quantities shown in Sheet No. 255 of the seized file No. 69 of factory were taken for quantification. For the remaining period, an average quantity of 15 MT per load was adopted for quantification. In respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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