TaxTMI 
TaxTMI 
TaxTMI 
2015 (11) TMI 1239
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.... manufacture of MS Ingots and CTD Bars. On 28.7.2007 the Central Excise officers searched the premises of one M/s Vishnu Steels, engaged in the manufacture of steel products, who was purchasing the materials from the Appellant Company. The Central Excise Officers recovered documents from the premises of M/s Vishnu Steel and also recorded various statements. As per the follow-up action, the statement of one broker viz., Shri Shivgopal Damani was recorded. Thereafter, a statement of M/s Manish R Agarwal, Director of the Appellant Company (Appellant No.2) was recorded on 14.5.2009. 3. A show cause notice dtd 4.9.2009 was issued to the Appellant Company proposing demand of duty of Rs. 10,03,314/- alongwith interest and to impose penalty on the....
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....lant had not countered the statements of the buyer and the broker. Regarding the rejection of the cross examination, the Learned Authorised Representative relied upon decision of the Tribunal. He submits that the Director of the Appellant Company had accepted the clandestine removal and there is no requirement of the cross examination of the buyer and broker. He further submitted evidentiary value of the documents cannot be lost in absence of cross examination. 6. After hearing both the sides and on perusal of the records, I find from the impugned order that the clandestine clearances of the goods of the Appellant Company is based on the documentary evidence seized from the premises of the buyer M/s Vishnu Steel and the statements from Shr....
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.... assumption and presumption. In my considered view, the retraction of the statement cannot be brushed aside, only alleging to the Learned Advocate, unless it is based on some evidence. In any event, the reply to the show cause notice was submitted by the Learned Advocate on behalf of the appellant and therefore, it cannot be said that it is a brain child of the Learned Advocate. Hence, the findings of the Commissioner (Appeals) regarding the rejection of the retraction of the statement cannot be accepted. 8. The entire case was made out on the basis of the documents recovered from the premises of the buyer. There is no iota evidence that the documents recovered from the premises of are corroborating with any material of the appellant compa....
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.... has been discussed and the legal position has been summarized as under: i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; ii) Evidence in support thereof should be of: a) raw materials, in excess of that contained as per the statutory records; b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; c) discovery of such finished goods outside the factory; d) instances of sale of such goods to identified parties; e) receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; f) use of electricity far in excess ....
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....ons whose statements were recorded 23 years after the event for cross-examination is impractical and not feasible. Secondly, no fresh material has to be brought on record to warrant a re-look. The Court is satisfied that the existing material is insufficient to sustain the adjudication order of the CCE on the issue." 9. In the case of Shalini Steel Pvt Ltd vs CCE - 2010(258) ELT. 54 (T) upheld by the Hon'ble Andhra Pradesh High Court as reported in 2015(317)ELT.A123 (AP) it has been held that the statement of the broker and documents recovered from the him had no evidentiary value to establish clandestine removal. The Learned Advocate relied upon the various case laws as regards the charge of clandestine removal cannot be established merel....