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TMI Blog2018 (10) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... id statement cannot be relied upon as evidence - Also, there are inconsistency in his statement as explained by the learned Counsel for the appellant and these facts have not also been corroborated from the owner of M/s. Jain Dharmakanta. Hon’ble High Court of Allahabad in the case of Continental Cement Company Vs. Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] held that charge of clandestine manufacture & removal is a serious charge & it has to be proved by bringing on record clinching evidence in the form of purchase of excess raw materials, use of extra electricity, sale of final products, clandestine removal, transportation, payment & realization of sale proceeds - in the present case, there is no evidence to prove that appellant was involved in clandestine manufacture & removal of goods. Appeal allowed - decided in favor of appellant. - APPEAL No. E/129 & 227-229/2012-EX[DB] - A/72085-72088/2018-EX[DB] - Dated:- 10-4-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri S. K. Mathur, Advocate for Appellant Shri Mohd. Altaf, Assistant Commissioner (AR) for Respondent ORDER Per: Anil Choudhary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and these bills were being destroyed after receipt of finished excisable goods at the end of consignee. No invoice book of M/s Prakash Ispat was found during search in the factory premises. The stock of finished excisable goods and raw material was physically verified by the officers. During verification, finished goods i.e. MS Flats weighing 14,840 Kg was found available and raw material i.e. misroll weighing 44,980 Kg was also found available in the factory premises of M/s Prakash Ispat. The details of stock physically verified were recorded in Annexure-B to the Panchnama. It is further alleged that the appellant could not produce any record/documents relating to stock of raw material and finished goods. It further appeared that the stock of raw materials was unaccounted in the factory of M/s Prakash Ispat with an intent to remove the same after manufacturing of finished goods clandestinely. Accordingly it appeared that the stock of raw material and finished goods and also the goods loaded on the truck No. U.P.14J-7877 were liable to confiscation and accordingly seized. A separate Show Cause Notice proposing confiscation of the seized goods dated 21/01/2008 was issued to M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter all the official work of his factory, that he signed all the documents and cheques of the company, that his father Shri R. P. Bansal could tell as to why they had not applied for registration with the Central Excise Department, on being specifically asked as to whether any goods have been removed from their factory on 25/07/2007 without payment of Central Excise duty and in view of the specific directions of the Assistant Commissioner of Central Excise dated 30/07/2007, he admitted that after order dated 13/09/2007 of Hon'ble Allahabad High Court, they had removed the seized quantity of excisable goods loaded on truck No. U.P.14J-7877 and also the seized quantities of finished goods and raw materials available in their factory without payment of Central Excise duty. As regards the duty paid nature of the goods found loaded on the truck on 25/07/2007, he stated that this matter can be clarified by Shri R. P. Bansal that along with himself is a director in the company and his brothers Shri Praveen Bansal and Shri Anil Bansal are also directors in the company. Further stated that they have deposited an amount of ₹ 3,40,000/- as per directions of the High Court and they s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Prasad Jaiswal Weightment Clerk of M/s Jain Dharamkanta was recorded in some other proceedings relating to some other respect, which has also been relied upon (documents) in the present case. Whereas, it appeared to Revenue that the weighment slips of M/s Jain Dharamkanta recovered from the factory premises of M/s Prakash Ispat vide Sr. No. 1 of Annexure-A to the Panchnama and it appeared that these weighment slips contains the details such as Sr. No., date, time of weighment, type of goods, vehicle number, weighment charges, gross weight, tare weight and net weight. These weighment slips also bear the signature of weigh bridge operator. The scrutiny of weighment slips revealed that the vehicles numbers mentioned are those which have been stated to be registered in the personal names of the directors of M/s Prakash Ispat. Further, on the body of these weighment slips a remark as AM Baki is also written by hand. Accordingly, it appeared that the excisable goods mentioning in these weighment slips, pertains to M/s Prakash Ispat. During the investigation with respect of one M/s Apollo Pipes Ltd., statement of Shri Rajendra Prasad Jaiswal Weighment Clerk of M/s Jain Dharamk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to the said M/s Jain Dharamkanta. On being further confronted with weighment slip no. 9212 dated 03/05/2007 of M/s Jain Dharamkanta, he stated that the goods mentioned in the said weighment slips does not belong to their company M/s Prakash Ispat, as the name of their company does not appear on the slip. Further from perusal of the weigment slips, which Shri Rajendra Prasad Jaiswal, Weighment Clerk of M/s Jain Dharamkanta, had submitted indicated that: Weighment slips presented/shown are carbon copy of the original weighment slips. Weighment slips carbon copy do not reflect the name of the issuing entity or the weighbridge. Weigment slips carbon copy are in bind book forms and do not depict the name or signature of the person from whom those weighment slips were resumed/handed over to the Department. Even the book of the weigment slips do not bear the name of entity which have issued the weigment slip. However some books did contain attached duplicate carbon copy of weigment slips which reflect the name of M/s Jain Dharamkanta. weigment slips nowhere depict the name and/or address of M/s Prakash Ispat. Weigment slips do not bear the original signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art-1A and as such both were required to be clubbed and such figures are contained in Annexure-1C to the SCN. Further, as per records such as purchase invoices submitted by appellant in respect of purchase of raw material for their Sikandrabad Unit, a chart was prepared by Revenue pertaining to procurement of raw materials for the period 2005-06 to 2006 07 and the same is annexed as Annexure-2A to the SCN. And whereas, on the basis of weighment slips resumed from factory of appellant on 25/07/2007, weighment slips resumed around 27/07/2007 at business premises of M/s Jain Dharamkanta and weighment slips tendered by Shri Rajendra Prasad Jaiswal vide his letter dated 09/02/2007, Revenue prepared a detailed chart stated to show receipt of raw materials in the factory premises of appellant during the said period based on weighment slips in which the description of the goods is given as Loha (iron) and there is a handwritten inscription AM Baki on the body of these weighment slips. The said chart has been annexed to the SCN and marked as Annexure-IIB. And whereas on the basis of chart (Annexure-IIB), relating to the receipt of unaccounted huge quantitities of raw materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further penalty was also proposed. Further personal penalty of ₹ 15,00,000/- on each Directors namely; Shri Sunil Bansal Shri Praveen Bansal under Rule 26 of the Central Excise Rules, 2002 was also imposed. Further personal penalty of ₹ 15,00,000/- on Shri Richh Pal Bansal - Manager of M/s Prakash Ispat, Sikandrabad. 4. The SCN was earlier adjudicated vide OIO dated 23/09/2008 by the then Commissioner Central Excise, Noida. The Hon'ble Supreme Court by its order dated 08/03/2010 in Civil Appeal Nos. 2235 2238 of 2010 arising out of S.L.P. Civil Nos. 30706 30709/2009 in the matter of M/s Prakash Ispat Udyog (P) Ltd. set aside the earlier Order-in-Original with directions to the Department to appoint another officer to adjudicate the disputed question. Thereafter, the appellants filed their reply to Show Cause Notice dated 13/05/2010 and had also prayed for cross-examination among others of the said Shri Rajendra Prasad Jaiswal, the then weighment Clerk of M/s Jain Dharamkanta, the statements and documents tendered by whom had been relied upon by the Revenue in drawing adverse view and/or the allegations of clandestine removal. Thereafter, after hearing the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whereabouts and as to if actually died. Definitely, Shri Rajendra Prasad Jaiswal was not available at M/s Jain Dharamkanta, as he had left the job. The weighment slips are neither the relied upon documents by the Department nor made available to the appellant. Thus, Revenue has failed to produce its witness as required under Section 9D of the Act and there is a clear case of lack of exercising jurisdiction vested in the Adjudicating Authority to enforce the attendance of witnesses. Thus, no reliance can be placed on the statement and documents submitted by Shri Rajendra Prasad Jaiswal in respect of some other proceedings in February, 2007, prior to the search/inspection at the appellants premises on 25/07/2007. The statement of Shri Rajendra Prasad Jaiswal is also hit by the provisions of Section 9D of the Central Excise Act, 1944 and accordingly have got no evidentiary value. The said statement of Shri Rajendra Prasad Jaiswal is also in the teeth of the ruling of Hon ble Allahabad High Court in the case of Parmarth Iron (P) Ltd. reported at 2010 (260) E.L.T. 514 (Allahabad). Thus, there is only one piece of evidence, which is in the form of weighment slips submitted by the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeals by setting aside the impugned order. The learned counsel also states that under the facts and circumstances the personal penalty is also not tenable and fit to be set aside. 6. The learned A. R. for Revenue have relied upon the impugned order. It is further submitted that the directors of the appellant company were having trucks owned by them. The registration number of such trucks was found on the weighment slips recovered from the factory which corroborated with the entries made in the production register. In the weighment slips produced by Shri Rajendra Prasad Jaiswal the same truck number is stood mentioned. As such it is contended that the confirmation of demand on the basis of the charge of clandestine removal is proper and appropriate. He further submits that the SSI benefit has rightly been denied. Thus, the appeals are fit to be dismissed 7. We find that the Department is heavily relying upon the statement of Shri Rajendra Prasad Jaiswal, Weighment Clerk of M/s. Jain Dharamakanta, Sikandrabad, to prove the entries mentioned in weighment slips allegedly belonging to the appellant. However, we find that the said statement of Shri Rajendra Prasad Jaiswal, ..... 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