TaxTMI 
TaxTMI 
2021 (6) TMI 973
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.... cross- examination was done. 3 Learned Authorized Representative argued that there is difference between the said case and this case. For this purpose he relies on the admission made by the sales manager and the authorized concern of the main noticee namely M/s Kiran Ispat Udyog. He admits that no cross- examination was done of any witness whose statements has been relied upon in this case. 4 I have considered rival submissions practically identical case of Bansal Casting Pvt Ltd for involving the same appellant was decided in the favour of the appellant vide Order No. A/ 11554 - 11556/2019. The primary reason for allowing appeal is recorded in para 4 of the order of tribunal which reads as under: "4. I have carefully considered the submissions made by both the sides and perused the records. I find that entire case was made out on the basis of search conducted with the third party which is the broker and the records recovered the from the broker. The records of the broker bearing some entries related to some of the goods. Some statement was recorded from the broker. I find that despite the appellant requested for cross examination, the lower authorities have rejecte....
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.... GR No. 34 had been written not by Shri Sanjay Garg, but by his brother, whose statement has not been recorded and on GR 187, there is no mention of the name of the Appellant No. 1 at all. No statement of the drivers concerned has been recorded by the Revenue to establish that the finished goods manufactured by the Appellants were removed without payment of duty. The other transporters have not been produced for the purpose of cross-examination nor the statements of drivers who might have actually carried the goods, had been recorded. Moreover no statement of any of the recipients of the goods had been brought on record. Thus the statements of the transporters have remained uncorroborated and also suffers from the short coming of being not being cross-examined by the Appellants. It has been the settled law that the liability cannot be fastened on an assessee on the strength of documents seized from the possession of third party. There should be some corroborative evidence/material. The Tribunal has in the case of Emmtex Synthetics Ltd., supra, when the charge of clandestine removal was made against the Appellants therein out of yarn received from a third party based on the diary, l....
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.... of goods from that transport company for want of corroboration from any tangible evidence. Following the ratio of these decision, the duty demand cannot be upheld solely on the basis of uncorroborated statements and records of transporter. The statements tendered by the labourers can also not be relied upon by the Revenue as these persons were not produced for being cross-examined. Moreover, there is no corroboration of their statements with regard to the Trucks by which the goods were allegedly removed or the persons who received the goods. The Truck driver Shri Shiv Bahadur Yadav has also not been cross-examined and cleaner Shri Rakesh Kumar had deposed that the Bills/Invoices are supposed to be with the Driver and he being cleaner had no knowledge. 10.The confirmation of duty in respect of 149 consignments is also based on the records seized from the premises of M/s. Chitra Traders and not on the basis of any record seized from the premises of the Appellant-company. The Revenue has not been able to adduce any corroborative evidence to show the movement of goods from the premises of the Appellant-company to the premises of M/s. Chitra Traders or the Customers whom the g....
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....dered the submissions of both the sides. We have the charge of clandestine removal of bags-in-boxes by the Appellants has not been established by Revenue which has mainly relied upon the difference in figures of sale of the impugned product reflected in PMX Reports. It is not disputed by Revenue that these reports are prepared by M/s. Hyderabad Beverages and not by the Appellants. No evidence has been brought on record to show any excess production of the impugned product by the Appellants by way of procuring necessary raw materials. In a similar situation in the case of Moon Beverages wherein the charges of clandestine removal was made on the basis of computerized sheets of sales figures maintained by M/s. Parle Exports Ltd. whom the figures were sent by the assessee, the Tribunal has held that "the charge of clandestine removal cannot be established on the basis of one single factor.Other corroborative evidence such as evidence of other inputs required for manufacture of aerated waters namely sugar, carbon dioxide being purchased and utilized in the manufacture of the final product during the period in dispute is required. There is no such corroborative evidence in the present ca....
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...., merely on the basis of third party evidence, that too not corroborated with any other evidence of the appellant, case of clandestine removal cannot be established. It is also observed that the appellant, Shri Atul Bansal, Director of M/s Bansal Castings has given ex-culpatory statement and he has not accepted any clandestine removal. In the case of Sulekhram Steels Pvt. Ltd. (supra), the Tribunal has considered that if there is no discrepancy in the raw material and finished goods, no incriminating documents recovered from the assessee, no record showing procurement of raw material for manufacturing of goods, extra payment to labourers, electricity consumption, transportation, etc. the clandestine removal was set aside. The facts more or less of the above judgment is similar to the facts of the present case. Similarly, in the case of Vishva Traders Pvt. Ltd. (supra), the Tribunal has held that in absence of the record to show purchase of raw material for manufacture of final products but when there is no statement of raw material suppliers, in this regard, the persons whose statements were recorded have not been produced for cross-examination, there is no investigation to indicat....