Clandestine removal requires independent corroboration; untested private records and retracted statements cannot sustain duty demands or penalties.
Clandestine manufacture and removal cannot be established solely through uncorroborated private diaries, loose sheets, and a third-party statement that is inconsistent, retracted on grounds of coercion, or not tested by cross-examination. Independent evidence, such as reliable buyer records, seizure of unaccounted goods, or tangible material linking production to clearance, is required. Captive consumption recorded in statutory records must also be addressed. Penalty under Rule 209A requires a proven connection with goods liable to confiscation and cannot survive where clandestine manufacture and removal are unproved. Consequently, the duty demand and consequential penalties were set aside.
Issues: (i) Whether clandestine manufacture and removal of polyester yarn and polyester chips was proved on the basis of the diary, loose sheets and the statement of a third party witness; (ii) Whether penalty under Rule 209A could be sustained against the individual appellant when the main allegation of clandestine removal was not established.
Issue (i): Whether clandestine manufacture and removal of polyester yarn and polyester chips was proved on the basis of the diary, loose sheets and the statement of a third party witness.
Analysis: The materials relied upon were the private diary, loose sheets and the statements of the Vice-President of the company. His statements were inconsistent, were retracted on the ground of coercion, and were not tested by cross-examination. The documents were third-party private records and were not supported by any independent corroboration. No reliable buyer evidence, seizure of unaccounted goods, or other tangible material established clandestine production or clearance. The record also did not disprove the explanation that the polyester chips were captively consumed and duly entered in statutory records.
Conclusion: Clandestine manufacture and removal were not proved; the duty demand could not be sustained.
Issue (ii): Whether penalty under Rule 209A could be sustained against the individual appellant when the main allegation of clandestine removal was not established.
Analysis: Penalty under Rule 209A required a proven connection with goods liable to confiscation. Once the allegation of clandestine manufacture and removal failed, the foundation for penalty disappeared. The retracted and uncorroborated statement, without independent evidence, was insufficient to fasten penal liability.
Conclusion: The penalty under Rule 209A was unsustainable.
Final Conclusion: The impugned duty demand and penalties were set aside, and the appeals were allowed with consequential relief.
Ratio Decidendi: Uncorroborated private records and an untested or retracted statement, without independent supporting evidence, are insufficient to prove clandestine manufacture and removal or to sustain consequential penalty.