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TMI Blog2019 (11) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... in appellant s factory under Panchnama dated 05.02.2015. There is no denial of the department to the said acknowledgement/deposition nor any evidence contrary to that. In such circumstance the loose-parchi recovered from M/s RPSL cannot be corroborated from the statement of Manager, M/s RPSL irrespective having any admission for receiving unaccounted MS Billets from the appellant. Both these evidences, documentary as well as oral are nothing more than a third-party evidence. Law has been settled that where the allegation of duty evasion is based on the documents and records procured or seized from other person or premises the burden of proof does not lie on the person accused of such evasion. It is the settled law of evidence that any evidence to be admissible has to be proved in corroboration. It is also the settled principle of evidence that a documentary evidence can be contradicted only by way of admissible documentary evidence no oral evidence can falsify the contents of the documentary evidence produced on record - In the absence thereof the fact remains that there is no corroborative evidence to the loose parchi recovered by the department that to from the premises oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DER The present order disposes of two appeals, the order-in-appeal bearing No. 002-113/18-19 dated 03.05.2018 being common and both appellants being co-notices. The facts in brief for the purpose are as follows: 2. M/s Aarti Sponge and Power Limited are engaged in manufacturing of sponge iron and MS billets. They are also availing the facility of CENVAT Credit scheme in respect of inputs of capital goods/input services used in manufacture of the said final product. On the basis of an intelligent department conducted a search at the factory premises of M/s Raipur Power Steels Ltd., Rasmada (referred as M/s RPSL) who are engaged in manufacture of sponge iron, ferroalloys, etc. and were requiring M.S. Billets as a primary raw-material being procured by them from M/s Godawari Power Ispat Ltd. Raipur, and from the appellants. During search some loose papers were recovered showing clandestine procurement of these raw material and removal of finished goods by M/s RPSL that too without payment of Central Excise duty. 2.1 Panchnama dated 16/17.01.2015 was prepared wherein one of the loose papers was observed showing receipt of 204. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence has miserably been ignored by the appellate authority. The order accordingly is prayed to be set aside and appeal is prayed to be allowed. Learned A.R per contra, while justifying the order-under-challenge has submitted that it is not at all the case of the third-party evidence as admittedly M/s RPSL were the purchasers of raw-material from the appellant. Above all, the invoices produced by the appellant differ in various particulars as that of transporters details, vehicle number, quantity and even date of deliveries as were mentioned in loose kacha-parchi showing unaccounted receipt of 304.820 MT of MS Billets which was otherwise apparent from the statement of Mr. Mahato, the Director of M/s RPSL. Hence, the order-under-challenge is based on the evidence on record with no infirmity therein, appeal is accordingly prayed to be dismissed. 4. After hearing both the parties, perusing the appeal record and the order-under challenge, I observe that Commissioner (Appeals) while upholding the recovery against the appellant and imposition of penalty on the appellant as well as its Director has relied upon : (i) the loose paper No.-5 (RUD2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue wants to rely upon the entry of the documents seized from the premises of third-party the burden lies upon the Revenue Authority to prove the genuineness and authenticity of the said entry and to connect the said entry with the dealer in case the dealer denies to have any connection with such entry. Commissioner (Appeals) herein has formed the opinion that since M/s RPSL was receiving raw-material from appellant, same cannot be held to the third-party, the said finding stands falsified in view of above adjudication of hon ble High Court. Also it has been the settled law that the loose papers/documents cannot be the sufficient proof of charges of clandestine removal unless there is corroborative evidence as was hold by Hon ble High Court of Delhi in the case of CCE vs. Kuber Tobacco Products Ltd. -2016 (339) ELT A130 (Del.) 7. Further admittedly details of the invoices issued by the appellant to M/s RPSL for delivery of MS Billets as raw material to them during the impugned period were provided by the appellant. Admittedly, those invoices show delivery of more raw material than is alleged to have been found clandestinely removed by the department. Those invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. Thus, to prove the allegation of clandestine sale, further corroborative evidences as above, are also required. Apparently, there is no investigation as conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry No. 1 dated 05.02.2015 though without any protest, it is held that mere deposit of some amount during investigation does not prove that goods have been admitted to have been cleared clandestinely. The possibility of persuasion of department cannot be ruled out as has been held by the Regional Bench, Chandigarh of this Tribunal in the case Sona Woolen Mills (supra). 13. Seen from the entire above discussions, I am of the opinion that department has failed to prove convincingly, cogently and in corroboration of the admissible evidence the allegations of clandestine removal of MS Billets by the appellant and even the shortage of raw material available with the appellant. The adjudicating authority below has failed to give the specific details of invoices which are different from the consignment details of the 304.820 MT of Billets as were received by M/s RSPL. In fact, the entire order is silent about the said consignment details also. Appellants are not denied to be the regular supplier of M.S. Billets to M/s RSPL as their law material. In such circumstances, total reliance upon the admission of third-party ignoring the deposition of appellant that entire supply to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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