Tribunal Upholds Clandestine Removal Charge with Preponderance of Probability Standard

The tribunal upheld the charge of clandestine removal against the appellant, emphasizing the standard of evidence based on the preponderance of probability. The appeal was dismissed, and the impugned order was upheld.

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Issues Involved:
1. Ownership and attribution of seized documents.
2. Reliability of the retracted statement and cross-examination.
3. Charge of clandestine removal and expert opinions.

Issue-wise Detailed Analysis:

1. Ownership and Attribution of Seized Documents:
The primary issue was whether the documents seized from the premises at A-31, Wazirpur Industrial Area, New Delhi, pertained to M/s. HSAL and if the entries in the five "Neelgagan" diaries and the loose sheets could be attributed to Shri Bijendra Kumar Arya. During the search on 06.10.1994, officers recovered these diaries, and a detailed statement from Arya was recorded, where he explained the entries in the diaries, confirming that they were maintained by him. He identified entries covered by invoices/gate-passes and those indicating evasion of Central Excise duty. The appellant contested this evidence, arguing that Arya retracted his statement and that the handwriting in the diaries did not match Arya's. However, the tribunal found the statement reliable, noting that the detailed entries matched the invoices/gate-passes, lending credibility to the diaries' contents.

2. Reliability of the Retracted Statement and Cross-examination:
The appellant argued that Arya's statement should be ignored as it was retracted and he was not produced for cross-examination. The tribunal noted that Arya's detailed statement, given during the search, was corroborated by other evidence, including matching truck numbers and transport details. The retraction was considered an afterthought, influenced by the appellant. The tribunal also addressed the non-attendance of Arya for cross-examination, noting that summons were issued, but Arya did not present himself, likely under the appellant's influence. Thus, the tribunal upheld the reliability of Arya's statement despite the retraction and absence for cross-examination.

3. Charge of Clandestine Removal and Expert Opinions:
The appellant contested the charge of clandestine removal, presenting expert opinions on electricity consumption and production capacity. They argued that their production was consistent with industry norms and that no unaccounted goods were transported, supported by certificates from local Sales Tax Authorities and Haryana State Electricity Board. However, the tribunal found that the expert opinions did not conclusively prove that the appellant could not have produced the goods alleged to be cleared clandestinely. The tribunal noted that the appellant had additional power sources (DG Sets) not accounted for in the expert reports. The tribunal also addressed the argument regarding cash receipts, stating that the evidence of cash transactions for unaccounted goods could not be ignored, as clandestine removal is inherently difficult to prove with mathematical precision. The tribunal concluded that the case was established on the preponderance of probability, not requiring the same level of proof as criminal proceedings.

Conclusion:
After considering the voluminous records, facts, and circumstances, the tribunal upheld the charge of clandestine removal against the appellant. The tribunal emphasized that in quasi-judicial proceedings, the standard of evidence is based on the preponderance of probability rather than beyond reasonable doubt. The appeal was dismissed, and the impugned order was upheld.

Result:
The appeal is dismissed.

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