TaxTMI 
TaxTMI 
2019 (12) TMI 546
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....ules, 2002. 2. The appellant is manufacturer of TMT Tor and Bars and their major raw material is M.S. Ingots. The officers searched the factory premises of M/s. Kamper Concast Ltd. on 23.07.2013. The factory of the appellant was also situated in the same compound, but the officers did not have any search warrant to search the factory premises of the appellant. The factory premises of the appellant as well as of M/s.Kamper Concast Ltd. were jointly searched by the officers and the officers recovered some documents related to the appellant company. The office premises of the appellant company situated at 305 M.P. Centre, New Dak Bangla Road, Patna was also searched by the officers and the officers recovered some loose papers from the aforesaid premises. The officers also recovered a pen-drive of Kingston make 4GB from the possession of Director of the company Shri Promod Kumar Agarwal. Although 5 computers were found installed in the said office premises which were browsed in the presence of the panchwitnesses, nothing incriminating was found. The computer printouts obtained from the said pen-drive were kept in FileNo.01/DGCEI/JRU/CRMPL/0/2013 and 02/DGCEI/JRU/CRMPL/0/ 2013. The o....
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....t mentioned as No.12/DGCEI/JRU/CRMPL/0/13 which were in the form of loose note pads and handwritten date wise clearances from 01.06.2013 to 30.06.2013 were compared with the sale invoices issued during the corresponding period and it was found that in respect of some of the entries, Central Excise invoices were not issued and in some of the entries there is under valuation or suppression of quantity. Accordingly, it was presumed that said documents relates to clandestine clearances of finished goods. Further the documents seized from office of City Rolling Mills Pvt. Ltd. N.P. Centre and as mentioned as No.19/DGCEI/JZR/CRMPL/01/13 and 20/DGCEI/JZR/CRMPL/01/13 which were in the nature of loose sheets were further compared with document with File No.01/DGCEI/JRU/CRMPL/0/13 & 02/DGCEI/JRU/CRMPL/0/13 and it was found that some of the entries made in the said document was corroborative with File No.01/DGCEI/JRU/CRMPL/0/13& 02/DGCEI/JRU/CRMPL/0/13 and accordingly it was concluded that the said documents were related to clandestine removal of clearances of their finished goods without payment of excise duty. Documents mentioned as No.27/DGCEI/JRU/CRMPL/0/13 which were in the form of hand ....
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....01/DGCEI/JRU/CRMPL/0/13 and 02/DGCEI/JRU/CRMPL/0/13 on the basis of which the entire demand is based was retrieved from a pen drive which was never recovered from the appellant's premises. The statement of the Director of the company is also based on the documents which were recovered/obtained from the said device and are not sustainable in the eyes of law. Even otherwise the Director of the company in his statement dated 23.07.2013 has simply stated that it might be possible that some of the entries shown in the document recovered from the said pen drive will not match with the sale invoices. Such a dubious statement which is based on planted device is not sufficient to prove the charges of clandestine removal. 8. They emphasized that according to the Panchanama, there were 5 other computers which were installed in the office premises of the appellant and nothing incriminating has been found by the officers in the said computers. It is certain that the data which was in the pen drive was taken from some computer installed at the office of the appellant. In this case, no evidence for source of the data contained in the pen drive has been brought on the record and in the absence ....
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....orted at 2017 (352) ELT 416 and M/s. Popular Paints and Chemicals Vs. C. C. Ex. Raipur in Appeal No. E/52738, 52740-52741/2016(DB) vide Final Order No.52716- 52718/2018 and Bihar Foundry and Casting Limited Vs. C.C.Ex. Ranchi, Appeal Nos. 75819 and 75822 of 2015 vide Final Order Nos. 75994-75995 of 2015. Similar views were taken by the Tribunal in the case of M/s. Super Smelters Ltd. and Others Vs. C.C.Ex. Durgapur in Appeal Nos.76243/2017, E/76244/2017 and 76245/2017, E/76245/2017 and E/76247/2017 vide Final Order Nos. 76357-76361 of 2019. In view of the above judgments the demand based on the said planted pen drive is liable to be set aside. 10. As regards documents No. 12/DGCEI/JRU/CRMPL/0/13, 19/DGCEI/JRU/CRMPL/13,21/DGCEI/JRU/CRMPL /0/13 and 27/ DGCEI/JRU/CRMPL/0/13 which are in the nature of loose sheets and hand written sheets, they submitted that the said documents were indiscriminately resumed at the time of the search without proper authentication and verification as to who is author of the said documents. The said documents were further compared by the department as per their convenience with the Invoices or from sale register or from data obtained from the computer p....
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....ment of duty. No charges of extra electricity consumption or alternate source of electricity has been alleged. No charges of extra procurement of raw material and their suppliers were adduced. No charges of receipt of raw material by transporters without any transport documents have been alleged. Similarly no evidence with regard to which the goods were clandestinely cleared has been adduced. No evidence as regard to the transportation of finished goods without payment of duty has been adduced in the present case. Similarly no evidence for receipt of payment in cash in respect of goods alleged to have been cleared clandestinely has been adduced. The department has not made any enquiry in respect of these vital ingredients and the entire case is based on illogical theories and comparison of documents of each other and that is too as per the convenience of the department. The charges of clandestine removal which is not based on any corroborative evidence cannot be held sustainable. Oral statement of the Director is also merely based on the printouts obtained from the alleged pen drive and not on the loose sheets which were compared each other and were some statutory records and concl....
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....limitation as regular audits were conducted on timely basis and no such discrepancies were noticed by the audit parties or by the visiting officers. 14. Heard learned Authorized Representative for the Department who supported the impugned order and contended that the documents obtained from the pen drives were duly signed by the Director of the Company and he has admitted that the said documents pertains to clandestine removal of the appellant's factory. The statements of the employees have also supported the said fact and it is not necessary that in every case corroborative evidence has to be brought into the record to prove the charges of clandestine removal especially when it is admitted by the representatives of the company. He further submitted that the loose documents pertains to the appellant factory and recovered from their office and compared with each other and wherever they were not matched with the corresponding invoices, the demand was correctly raised. He stated that some of the entries shown in the loose papers and document obtained from the recovered pen-drive does not match with the corresponding statutory records which clearly proves that the goods were clandes....