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TMI Blog2019 (1) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... es and payment of duty with collusion of transporters, the Central Excise Officers searched the business premises of M/s. Pahalwan Goods Carrier, Bhiwadi and M/s Shree Transport, Bhiwadi on 30.11.2012 and 05.12.2012 respectively. The officers resumed certain documents from the premises of M/s Pahalwan Goods Carrier. Nothing was resumed from the premises of M/s Shree Transport. 2.2 A show cause notice dated 01.05.2015 has been issued for demanding Central Excuse duty amounting to Rs. 4,53,29,015/- and imposing penalty on the Appellants, alleging that on comparison of documents recovered from the transporter with the sales shown by the Appellant in their statutory records, it was found that the Appellants had issued invoices and paid duty only on some of the consignments and in many cases, the clearance of goods were not found entered in their statutory records. Shri Mahipal Yadav, Proprietor of M/s Pahalwan Goods Carrier has stated in his statement dated 29.08.2013 that his firm was mainly engaged in the transportation of the goods manufactured by the units of the Rathi Group. 2.3 The learned Commissioner, under the impugned Order dated 22.09.2016, has confirmed the demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ird party unless the same is corroborated by independent and cogent evidence. In this regard he relied upon the following decisions:- (i) Emmtex Synthetics Ltd. Vs CCE,2003 (151) ELT 170 (Tri-Del) (ii) Kedarnath Silk Mills Vs CCE,2006 (195) ELT 58 (Tri). (iii) Charminar Bottling Co. Pvt. Ltd. Vs CCE,2005 (192) ELT 1057 (Tri). (iv) Rutvi Steel & Alloys Vs CCE,2009 (243) ELT 154. (v) Surya Alloy Industries Ltd. Vs U.O.I.,2014 (305) ELT 340 (CAL). 3.3 The learned Advocate also referred to the judgment in the case of CBI Vs V.C. Shukla, 1988 (3) SCC 410, wherein the Supreme Court has observed that entries made in the books shall not alone be sufficient evidence to charge any person with liability. Entries, even if relevant, are only corroborative evidence and require independent evidence as to trustworthiness of those entries necessary to fasten liability. 4.1 The learned Advocate submitted that in the present matter, there is no independent corroboration of the records of the third party by way of recording statements of any truck drivers, who had allegedly transported the goods, statements of any so-called buyers whose names appeared in GRs [bilty] resumed from transporter pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the consistent view of the Courts and Tribunal that there should be positive evidence regarding purchase of raw materials, use of electricity, sale of final products to prove clandestine manufacture and removal. The Allahabad High Court has held in Continental Cement Company Vs U.O.I., 2014 (309) ELT 411 (ALL) that unless there is clinching evidence of the nature of purchase of raw material, use of electricity, sale of final products, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumption. The Allahabad High court has held that "we are of the opinion that when there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible." 6. The learned DR, Shri R.K. Mishra has supported the impugned Order-in-Original. The learned DR has emphasized that the register resumed from the premises of the transporter's contained the details of actual clearances and thus, the entries not recorded by the Appellants in their records were the goods removed without invoices and without payment of duty. There is no reason for a transporter to make those entries i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr. Altaf Ahmed in this regard. Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (Sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, Section 34 cannot at all be pressed into service against him." 9.1 Similar view has been taken by the Tribunal in the case of Rama Shyama Papers Ltd. Vs CCE, Lucknow, 2004 (168) ELT 494 (Tri-Del) by holding as under in Para 10: "10 The confirmation of duty in respect of 149 consignments is also based on the records seized from the premises of M/s. Chitra Traders and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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