Clandestine removal demands need independent corroboration; statements and private records alone cannot sustain duty and penalties.

Clandestine removal of cone yarn was not established because the Revenue relied mainly on third-party statements, private records and suspicion about buyers, without independent corroboration or effective cross-examination. The Tribunal held that such material, by itself, could not prove that the clearances were cone yarn rather than hank yarn, especially when the assessee produced sales tax and textile-related records supporting its case. The demand and associated penalties were therefore set aside except to the extent of the liability admitted in settlement proceedings. As the main demand failed substantially, the penalty on the Managing Director also could not survive and was vacated.

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Issues: (i) whether the Revenue had established clandestine removal of cone yarn under the guise of hank yarn for the relevant periods; (ii) whether the impugned demand and penalties could be sustained on the basis of statements, private records, and denial of effective cross-examination; and (iii) whether the penalty imposed on the Managing Director could survive when the demand against the manufacturing unit was partly set aside.

Issue (i): whether the Revenue had established clandestine removal of cone yarn under the guise of hank yarn for the relevant periods.

Analysis: The allegation of clandestine clearance required cogent and tangible evidence. The Revenue relied mainly on statements of buyers, a pocket diary, register entries, and surrounding circumstances relating to alleged non-genuine buyers. The Tribunal held that non-filing or incomplete filing of income tax returns by buyers, or doubts about their genuineness, did not by itself prove that the goods cleared by the appellant were cone yarn rather than hank yarn. The documentary material produced by the appellant, including sales tax assessments and textile-related returns, supported its case for hank yarn clearances. At the same time, for the portion of the demand connected to the settlement proceedings, the appellant accepted liability to a limited extent.

Conclusion: The charge of clandestine removal was not fully proved; the demand was set aside except to the extent of the admitted liability of Rs. 21.96 lakhs.

Issue (ii): whether the impugned demand and penalties could be sustained on the basis of statements, private records, and denial of effective cross-examination.

Analysis: The Tribunal held that statements of third parties could not be treated as the sole basis for confirming a serious charge of clandestine removal, particularly when the deponents were not made available for effective cross-examination and no independent corroboration was produced. Private records recovered from third-party premises and isolated entries in internal registers were held insufficient, without supporting evidence of manufacture, procurement, transport, or removal. The Tribunal also applied the rule that, where the statutory conditions for reliance on statements are not satisfied, such statements lose evidentiary value. The evidence relied upon by the adjudicating authority was therefore found inadequate for most of the demand period.

Conclusion: The demand and related penalties were not sustainable on the principal evidentiary basis relied upon by the adjudicating authority.

Issue (iii): whether the penalty imposed on the Managing Director could survive when the demand against the manufacturing unit was partly set aside.

Analysis: The penalty on the Managing Director was dependent on the sustainability of the main allegations against the manufacturing unit. Once the principal penalty and demand were substantially set aside, the basis for the individual penalty also failed, save for the limited admitted demand that remained.

Conclusion: The penalty on the Managing Director was set aside.

Final Conclusion: The appeal succeeded substantially for the assessee, with the main demand and penalties set aside except for the limited amount admitted before the Settlement Commission, and the connected personal penalty was vacated.

Ratio Decidendi: A charge of clandestine removal must be proved by independent, tangible and corroborated evidence, and statements or private records lacking effective cross-examination and corroboration cannot, by themselves, sustain duty and penalty demands.

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