TaxTMI 
TaxTMI 
2013 (11) TMI 1521
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....s received in the banks of the alleged dummy concerns has been bifurcated by Shri Rajesh Patel an employee of the appellant unit amongst the appellant unit and other two concerns. The demand was proposed in the SCN alleging that the said amounts were sale proceeds of goods cleared by M/s. Shree Maruti Fabrics and two other trading concerns. The Revenue has relied upon these work sheets to raise the demand against the appellant. The second demand is based upon the collection book of the appellant Unit. The third demand is on the basis of register said to be containing details of clearances. 3. The appellant in reference to demand calculated on the basis of worksheet has contended that the demand is absolutely erroneous as there is no basis of the demands made on the amounts shown in the said worksheets. The appellant has contended as under : (i) That the proprietor concerns are not controlled or related to Shri Babu S. Patel but are independent entities. (ii) That even though the demands are based upon the alleged statements of these owners but the said owners of proprietary units were not made available for cross-examination and thus thei....
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....ed in the Appeal memo and also two reminders were issued but no reply, comments or assistance was offered by the investigation or adjudicating authorities. This shows that the demands are erroneous. (xiii) The appellant also relied upon following judgments in support of their contention to state that the third party statements without any verification and evidences cannot be a ground to alleged clandestine removal : Shree Industries Ltd. v. CCE, Ahmedabad - 2010 (261) E.L.T. 803 (Tri.-Ahmd.) Sales affected on non-duty paid invoice not verified from buyers and removal of goods not verified from transporters - No investigation carried on excess production removed without payment of duty - HELD : Charge of clandestine removal could not be upheld in absence of corroborative evidence - Rules 11 and 25 of Central Excise Rules, 2002. [para 6] K. Rajagopal v. CCE, Madurai - 2002 (142) E.L.T. 128 (Tri.-Chennai) Private note-books not a conclusive piece of evidence to prove clandestine removal - Scribe of notebook not examined J.I. Gandhi Silk Mills v. CCE, Surat - 2009 (237) E.L.T. 103 (Tri.-Ahmd.) Statement of excise in-charge of appellant-company also not reliable, numb....
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....ation upon the department to further investigate - There being absence of any other corroborative evidence, demand not sustainable solely on the basis of retracted statement - Section 11A of Central Excise Act, 1944. [para 4] T.G.L. Poshak Corp. v. CCE, Hyderabad - 2002 (140) E.L.T. 187 (Tri.-Chennai) Clandestine Removal - Accounts and Records - Private accounts - Charge of clandestine removal based merely on note books maintained by workers and other private accounts, not sustainable unless supported by corroborative evidence with regard to purchase of raw material, manufacture of final goods, flow-back of money, or any seizure or statements from purchasers. CCE, Vadodara-I v. Milestone Organic Ltd. - 2009 (235) E.L.T. 690 (Tri.-Amd.) Evidence - Statement - Retracted statement - Confessional statement which in any case stands retracted, not sufficient to prove the charge of clandestine removal. [para 4] Opel Alloys (P) Ltd. v. CCE, Ghaziabad - 2005 (182) E.L.T. 64 (Tri.-Del.) The Appellants on the other hand brought on record the postal receipt on record to prove that the affidavit was despatched to the Commissioner which has not been controverted by Revenue. Evidence - Stat....
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....s exempted from payment of excise duty. That the said book contains purchase of cotton and details of cotton mix sending for process and hence does not pertain to the appellant. 5. A demand of Rs. 3,37,500/- is on account of clearance of cotton yarn for the year 2002-03. The appellant has stated that the register pertains to year 2002-03 whereas the demand is made for the year 2003-04, hence the demand is erroneous; that there are only two pages where name of Shri B.S. Patel is shown who is having other firms; that there is no ground that the said pages has any connection with the appellant. The first page of the annexure is details of purchases made by Shri B.S. Patel from various firms and second page is detail to sell. The payment has been received in cheque but no investigation about as to where the cheques were deposited; that there is no evidence that this amount pertains to any clandestine clearance of the appellant unit. The appellant has also filed written submission and requested to take the same on record. 6. The ld. DR would take me through the facts of the case. The Revenue's contention is that the proprietor of the unit in his statements and the owners of ....
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....the clearances which show that the figures arrived in the worksheet in respect of the appellant are also correct. In this context I find that only on the basis of acceptance of clandestine clearances by sister concern it cannot be said that the amount shown in the worksheet in respect of appellant unit pertain to clandestine clearance of appellant. The show cause notice or the orders passed by the adjudicating authority does nowhere shows as to how the said amounts pertain to clandestine clearance by the appellant. It is more so that not a single buyer's statement was recorded nor it is shown as to who are the buyer of said goods. The amounts received in the bank accounts of third party i.e. proprietors of alleged dummy concerns cannot be said to be pertain to alleged clearance of goods of appellant unless the buyers of the goods or any evidence in respect of clearance is produced. The Revenue has recorded the statements of many persons, however not a single buyer of the goods was enquired. The duty demand can be sustained only when the goods are manufactured and cleared. However in the instant case there is not a single consignee of the goods, no transporter of the goods. No inves....