TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1164
X X X X Extracts X X X X
X X X X Extracts X X X X
....also proposed to be imposed on the Directors. The show cause notice was adjudicated by the Commissioner of Service Tax and Central Excise, Jamshedpur vide Order-in-Original No.26/Commr./2018 dated 21.12.2018. Learned Commissioner passed the following order: (i) Confirmed the demand on the Central Excise duty amounting to Rs.11,44,27,725/- in terms of Section 11A(10) of Central Excise Act, 1944 and appropriated amount of Rs.37,50,000/- deposited during the course of investigation. (ii) Imposed penalty equivalent to the duty demanded in terms of Section 11AC (1)(C) of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002. (iii) Imposed penalty of Rs.2 crore and Rs.1 crore respectively on Shri Gyanchand Jaiswal and Sh. Raj Jaiswal, Directors of M/s MCPL under Rule 26 of Central Excise Rules, 2002. Hence, the appeals preferred by the Company as well as Directors. 2. Shri Hari Om Tewari & Shri Amit Awasthi, counsels appearing for the appellants at the outset submits that the whole case made out against the Appellant No. 1 is entirely based on unwarranted and unsubstantiated assumptions and inferences drawn from the printouts, which were....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dly found the seized documents i.e. Printout (assessable value however, was taken as reflected in the ER-1 Returns). 2.2. Learned Counsels submit that the inferences drawn from the above- mentioned computer printouts and loose private documents are sought to be corroborated firstly, by pointing out mutual corroboration and matching of entries between and amongst the said seized private documents themselves and the retrieved computer printouts, and, secondly, by relying upon the oral statements of persons of M/s MCPL. 2.3. Learned Counsels submit thatthough the department attempted to draw inferences drawn from the said printouts from the seized external hard disc, for the period 01.04.2011to 30.11.2015, only sporadic details are matching and inferences were further drawn relying on statements of one employee viz. Dharmendra Kumar (who was admittedly not the author of the relied upon private documents) and Mr. Vicky Kumar, who was not even a regular employee but only a part-time trainee; neither the said external hard disc nor the so called 'Computer Print-outs' fulfil mandatory conditions for their admissibility as enshrined under Section 36B(2) and 36B(4)....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (iii) RaghuveerIspat (P) Ltd. - Appeal No. E/70481-70482/2017 - EX (SM) 3.1. Learned Counsels submit that the allegation of clandestine removal of 26799.732 MT of M.S. Ingots valued at Rs. 97,13,49,575/- during the period from01.04.2011 to 30.11.2015 has been levelled merely on the basis of comparison of figures of quantity sold and assessable value appearing in monthly ER-1 Returns for the period Apr, 2011 to Nov, 2015 with corresponding figures appearing in coded form in decimal points, in the printouts of the sale ledger obtained from the seized hard disc; such comparison is legally impermissible and invalid; since the figures appearing in coded form in the printouts of sale ledger cannot be considered and treated as true and authentic figures more so, because they are totally unsubstantiated with any independent, tangible and positive corroborative evidence; there is no mention of the name of the Appellant Company anywhere in the printouts of the sale ledgers; printouts merely show the name of the selling firms as 'Rajesh' and 'Om Namah; Daily Production and Dispatch Reports are not the authentic documents of the Appellant Company; the said reports do not anywhe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....documents and no enquiries have been conducted from officers from CHPL to verify and confirm whether CHPL actually received the quantity; just four entries finding appearance of ledger of CHPL were compared with entries appearing in the printouts from the seized hard disc; one entry relates to Nov, 2011 and the other three entries to Jan, 2012; daily production and dispatch report for the said four dates does not exist to corroborate actual quantity removed; purchase ledger of CHPL is a third party private document, whose authenticity, genuineness and reliability is not free from doubt; inferences drawn on the basis of a single weighment slip and the four entries in the ledger of a third party to conclude clandestine removal for the entire period i.e. Apr, 2011 to Nov, 2015, is not maintainable. 3.4. Learned Counsels submit thatthe impugned SCN had placed reliance on the oral statements of a few employees and the Directors of the Appellant Company, namely Shri Dharmendra Kumar, Accountant, Shri Vicky Kumar, Data Entry Staff (Trainee), Shri Gian Chand Jaiswal, Director, Shri Raj Jaiswal, Director and Shri Amit Jaiswal, Nephew of Shri Gyan Chand Jaiswal; detailed submissions m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h following a procedure is allowed only if collection of evidence was not possible (Para 16); findings of the Commissioner is patently erroneous and make procedure laid down under Section 100(3) Cr. P.C. irrelevant; while relying on such findings, learned commissioner has in fact conceded lapses in the conduct of the searches; Commissioner has nowhere denied or rebutted the allegation regarding routine or multiple use of Panch witnesses; commissioner simply observes that even if it is assumed that the Panch witness Shri BirKarmarkar was an interested witness, the same does not negate search proceedings; Commissioner cannot disregard and digress from the settled legal position which mandates independent Panch witnesses;examination/cross examination conducted revealed that the Panchnama proceedings at all the impugned premises were carried out in contravention of of the provisions of Section 100(3) Cr.PC; Panchnamas were pre-typed and were made to be signed by the witnesses; submission that Panch witnesses are used in routine manner across various investigations at various places was not rebutted and the same cannot be brushed aside; reliance is placed on Jagroop Singh @ CEETA v/s DR....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2) & (4) of the Act; there appears no mention, whatsoever, of existence of any computer or computers in the office, factory or any other places searched by the investigating officers; it's not the case of SCN that the said internal hard was of any computer installed or being used in any computer operated by MCPL at any of their premises. 4.3. Learned Counsels submit further thatCommissionerthough dismissed the retracting deposition made by Shri Vicky Kumar during his cross examination as an afterthought or tutored; Shri Vicky Kumar stated on 04.12.2015 that entry of sales and purchase of M/s Makers Castings Pvt. Ltd was made on daily basis in the computer and data of sale and purchase are also stored in a hard disc (Transcend Storejet 500GB348228 1030) given by the Company M/s Makers Castings Pvt. Ltd.); itwould be obvious that there existed at least one computer in MCPL in which the data entry was originally made by him and the data so stored in the said computer was transferred and stored by him in another hard disc which is described by him as (Transcend Storejet 500GB348228 1030.); aforesaid hard disc recovered was an external hard disc and not a hard disc, internal or i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r held that Shri Vicky Kumar was an employee of MCPL and notwithstanding the false and fabricated deposition made by him during his cross- examination, the statement dated 04.12.2015 is found to be a voluntary statement and hence the same is held to be an admissible evidence in the instant case; this finding is erroneous and legally untenable; Commissioner has only relied upon the printouts of the sale details retrieved from the seized hard disc to conclude that the same matched with the contents of the hand written private documents thereby affirming the statement of Shri Vicky Kumar that the printouts contained the details of actual sale and purchase made by MCPL. 4.5. Learned Counsels submit thatconclusions, drawn by Commissioner on Shri Vicky Kumar statement that it has evidentiary value, suffer from following infirmities. * the authors of the private handwritten note books and diaries had neither been identified nor questioned to confirm the handwriting and meaning of the contents therein. * Shri Vicky Kumar stated during his cross-examination that the seized external hard disc was actually given to Shri Vicky Kumar by one Shri Shekher; the claim is also not been di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e not questioned on the alleged clandestine removal to Chanduka Hi-Tech; * Panchnama at the residence of Director of MCPL does not reveal as to from where the diary (Document No. 04) was recovered; therefore, this evidence is not admissible as per Kuber Tobacco - 2013 (290) ELT 545 (Tri. - Del.); * Though commissioner relies upon the evidence resumed during investigation at M/s Chanduka Hi-Tech Pvt Ltd and the SCN dated 17.03.2015 issued to M/s M/s Chanduka Hi-Tech Pvt Ltd, copies of alleged evidence or SCN were not served upon the appellants; they were not even made 'Relied Upon Document'; * Commissioner finds that MCPL has resorted to undervaluation in the said invoices and but had also hidden the actual data, in the printouts taken from the seized hard disc, by deliberately placing the decimal point two digits from the right side and thus they can be corroborated with details in other documents; * the hard disc was resumed from the bag of Shri Vicky Kumar who had been given the same by Shri Shekher outside the premises of MCPL; it is not established that the said hard disc was a property of MCPL and was actually being used in the office of MCPL; no enquiries have been co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed the fact that the department had itself committed procedural irregularities in resumption of evidences; he ignored the fact of routine use of BirKarmarkar as panch witness; under no provision of Jurisprudence, the Adjudicating Authority can justify to accuse the Appellant for failure to lead the positive evidence; onus to prove is on the department; appellant submitted evidence that witnesses were interested and data/ documents were resumed from third party; * Commissioner relies on 'undated comments' forwarded by DGCEI Office; * Shri Vicky Kumar clearly retracted his statement dated 04.12.2015 during the course of his cross-examination; he confessed that he had clearly told the officers that he did not know what the entries in the printouts were about and that he was compelled to write the replies as per the dictation given by the officers; no reliance can be placed on the statement dated 04.12.2015; * no reliance can be placed on the seized private documents such as diaries, loose sheets etc since the entries appearing in the seized unauthentic private documents are not only for a short duration (at the most period from Apr, 2015 to Nov, 2015); authors of all these priva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned order is not sustainable for the following reason that it is well settled position of that the charge of suppression of production and clandestine removal is a serious charge which is required to be established by production of sufficient tangible and positive corroborative evidence of clandestine manufacture and clearance and not merely on the basis of inferences or unwarranted assumptions; in the instant case the entire demand of duty has been raised on the basis of legally inadmissible computer printouts retrieved from external hard disc, private unauthentic diaries, loose sheets or third party private documents recovered through illegal Panchnama proceedings; no adequate corroborative and independently reliable evidence in regard to installed capacity of production, procurement/purchase and utilization of various raw-materials; labour employed; power consumed; transportation; Sale & Receipt of finished goods sold to buyers; accounting of goods sold in the books of account of the buyers and realisation of sale proceeds from the buyers, etc has been collected or adduced. They rely on the ratio of the following cases. * Continental Cement Co. Vs Union of India 2014 (309) ELT....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 502 (Tri.) * Balashri Metals Pvt. Ltd. Vs UOI2017 (345) ELT 147 (Jhar H.C.) * Triveni Rubber & Plastics Vs CCE1994 (73) ELT 7 (SC) * Galaxy Indo Fab Vs CCE, Lucknow2010 (258) ELT 254 (Tri. - Del.) * CCE, Chandigarh Vs Dashmesh Castings (P) Ltd.2010 (257) ELT 225 (P & H) 4.7. Learned Counsels submit that there is no evidence whatsoever to surplus production or stock of finished goods in excess of that recorded in the statutory records to support the allegation of suppression of production with intent to remove the same clandestinely; there is no corroborative evidence to prove even a single instance of actual removal of unaccounted M.S. Ingots & waste from the factory without payment of duty and without issuing the central excise invoice; there is no instance of interception of any of the aforesaid finished goods removed from the factory; also there is no evidence of any such finished excisable goods having been found and seized at any premises; no enquiries were conducted with alleged buyers; there is not even an iota of evidence of realization of sale proceedsin respect of any such alleged clandestine removal of finished goods; in view of complete absence of tangib....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... regard that, in any type of clandestine activities, the persons indulging in it take sufficient precautions to hide/destroy the evidences and it cannot be expected of him to faithfully put the details of all such clearance/transactions in some register/records/electronic devices for any agency to come and lay hands on it. * The assessees involved in clandestine activities normally prefer to store data of clandestine activities in some electronic devices in some fake names in a coded manner and to destroy hard documents after periodic intervals. The investigating officers are thus able to lay hands on only those evidences that are left in spite of the best care and precautions taken by the persons involved in such clandestine activities. * Handwritten note books seized from the office of M/s. MCPL and the documents seized from the residence of Director are matching; correlation of various documents recovered is discussed in para 3.7.4 of Order-in-Original. * Print-out of the hard disc corroborated by the purchase ledger of one of the main buyers of M/s. MCPL i.e., M/s. Chanduka Hi-tech Pvt. Ltd.; excise invoices issued by M/s. MCPL during relevant period also figure in the pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te-wise transaction details of MCPL for the period April, 2015 to July, 2015,numbered 04/DGCEI/JRU/MCPL/R/15 and 03/DGCEI/JRU/MCPL/R/15, recovered from the residence of Mr.Gyan Chand Jaiswal; (iii). Documents No. 01, 02, 03, 04 & 05/DOCEI/JRU/MCPL/0/15, recovered search of secret office of MCPL and alleged o contain daily dispatch reports and date-wise production reports, during February, 2015 to November, 2015; these were said to be prepared manually by Mr.Chitranjan Sharma, plant supervisor of MCPL; (iv). Document No. 07 & 08/DOCEI/JRU/MCPL/0/15, seized from the office of MCPL, alleged to contain details of payment and receipt of MCPL; (v). Document No. 02/DGCEI/JRU/MCPL/R/15, alleged to contain day- to-day details of deposit and withdrawal of cash in the name of sellers and buyers of MCPL during 02.04.2013 to 01.04.2015; (vi). Documents, No. 04/DOCEI/JRU/MCPL/0/15, alleged to contain mobile bills of staff/Director of MCPL; (vii). Documents, No. 01/DGCEI/JRU/MCPL/F/15-alleged to contain this document contains Weighment slips and a few loose papers. (viii).statements of S/Shri Dharmendra Kumar, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of the Radhakishan V State of UP case reported in AIR 1963 SC 823, held that due to illegality of search, the court may be inclined to examine carefully the evidence regarding the seizure. Beyond this, no other consequence ensured. The Constitutional Bench in the Pooran Mal case, reported in (1974) 1 SCC 345, held that Courts in India even in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. It was further held that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. 9. We find that there were some procedural irregularities in the conduct of the Panchnama proceedings. The investigating agency was required to use panchas whose credentials cannot be questioned. Repeated use of the same Panch witnesses all around different places by the same agency, give scope for avoidable allegations while casting doubts on the proceedings initiated by using them. The Panchnama drawn at ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rther submit that the hard disc does not belong to the company and was handed over to Shri Vicky Kumar by one Mr. Shekar just before the proceedings started. Neither the investigating agency nor the Learned Commissioner have bothered to enquire the veracity of the statement of Mr. Vicky Kumar and no efforts were made to find the whereabouts of Shri Shekar. The appellant submits that to this extent the printouts taken from the hard disc seized from the possession of Mr. Vicky Kumar loses the evidentiary value. We find that learned Commissioner has relied upon the cases of Copier Force India Ltd. Vs. Commissioner of Central Excise, Chennai: 2008 (231) ELT 224 (Tri.-Chennai); Ammal Steels vs. Commissioner: 2009 (241) ELT 537 (CESTAT) and Shri UlaganayagiAmmal Steels vs. Commissioner: 2008 (231) ELT 434 (Tri.-Chennai) and observed that the hard disc was seized from the office of MCPL in the presence of staff of MCPL and independent witnesses; printout of relevant data contained therein was taken in presence of the said staff and independent witnesses and each page thereof was signed by the said staff and therefore, the provisions of Section 36(B) of Central Excise Act, 1944 need not be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cessing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particula....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd they were not even questioned as to how the premises were permitted to be used or permitted to be used by the appellants; moreover, it was not identified as to which computer the said hard disc belonged to and as to what kind of data is being stored in the hard disc in the day-to-day conduct of business of the appellant. No certificate whatsoever by the person who has extracted the data, in terms of Section 36(B)(4) was issued; even if it is assumed that it was an afterthought, the claim of Mr. Vicky Kumar that the hard disc was handed over to him by one Mr. Shekar was not controverted by the officers of the investigating agency nor Shri Vicky Kumar was questioned by the Commissioner during the examination in this regard; Shri Shekar was not examined either by the agency or by the Commissioner. 12. We find that there is considerable force in the arguments of the appellants that there appears no mention, whatsoever, of existence of any computer or computers in the office, factory or any other places searched by the investigating officers, wherein the said hard disc is used. The said hard disc was an external hard disc admittedly recovered from the bag of Shri Vicky Kumar w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the electronic documents. It appears from the Panchnama and record of proceedings that the alleged date recovered from electronic documents, so seized, was copied in a hard disk in presence of one person and, thereafter, it was opened in front of other persons. It is noted that the certificate was not prepared during the seizure of the electronic devices, as required under the law. 9. The investigation is normally started after collecting the intelligence/information from various sources. The investigating officers are procuring the evidences in the nature of documents, statements, etc., to establish the truth. During the evolution of technology, the electronic devices were used as evidence. In this context, the law is framed to follow the procedure, while using the electronic devices as evidence for authenticity of the documents, which would be examined by the adjudicating authority during adjudication proceeding. In the instant case, it is found that the entire case proceeded on the basis of the electronic documents as evidence. But the investigating officers had not taken pain to comply with the provisions of the law to establish the truthfulness of the documents and mer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 17. Only if the electronic record, is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of Examiner of Electronic Evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India. 13. Even assuming that that the assertions of learned commissioner that in the instant case the printouts from the disputed hard disc were taken in the presence of Shri Vicky Kumar & independent witnesses and Shri kumar has signed each of the pages and thus there was no need to follow the procedure under 36(B); and that the procedural viol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingly generalised and extrapolated the duty demand for the period 1.4.2011 to 30.11.2015 whereas the so-called corroboration from other documents, however, unreliable was only for the period April 2015 to November 2015. Learned Commissioner relies upon the statement of Mr. Vicky Kumar that the printout contains sale details of MS ingots for the period 1.4.2011 to 30.11.2015 made in the fake names of 'Rajesh' and 'Om Namaha'; the seized hard disc was recovered from his possession and the same was to be handed over to Shri Gyanchand Jaiswal; printouts contained data entry; no place for tampering and interpolation. Commissioner also relies on the quantification put forth by the MCPL in course of reply submitted to the show-cause notice wherein the appellants have deducted the clearances shown in ER-1 returns and concludes that the appellants have no objection so far as the quantity of clearances of MS ingots reflected in the computer printouts. Commissioner also finds that clandestine activities in any type of clandestine activity, the person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidences and it cannot be expected of him to faithfully put t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s not been identified and has neither been examined nor produced for cross-examination, thirdly, the documents are merely duplicate copies, fourthly, the contents of those documents are not proved to be true and in any case, the said documents were not seized from the factory premises of the appellants, or from the premises in possession of the appellants. 13. It is well settled law that the seizure of documents from any premises in support of any serious charge must be established to have been done by following the procedure known to law, minor lapses being condonable. However, the mandatory rules of procedure to ensure the authenticity of such seizure and of the seized materials must be established to have been complied with. It requires to take proper care to ensure that the documents seized in the course of such proceedings are properly kept in an envelop or cover and duly sealed and due care is taken to protect the same from any third party interference. Panchnama should disclose the steps taken by the seizing authority to ensure the absence of any opportunity to any stranger to interfere with such documents. The panchnama should also disclose proper description of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and Shri Dharmendra Kumar. On-going through the statements we find that the statement of Shri Vicky Kumar as sketchy to the extent that on the one hand he says he as working from the last 5-6 moths and at the same time he confirms the details from 2011 onwards; his claim of the hard disc being given by somebody else is not controverted; the said Shri Shekhar was not identified and questioned. The statement of Shri Vicky Kumar recorded on 4-12-2015 is full of cuttings and corrections and no signatures accepting the corrections were taken. Shri Dharmendra kumar did not reveal any incriminating facts but simply identified that Shri Chittaranjan Sharma recorded raw material and finished products details and that any details would be informed by Shri Jaiswal. The statement of Dharmendra cannot by any manner help the investigation. Regarding the shortages he simply stated that they were marginal and acceptable for the industry. We also find that the statements of Shri Gyan Chand Jaiswal/Amit Jaiswal/Raj Jaiswal throw any significant light on the modus operandi. There were in fact no specific and incisive questions asked during the statements of management except that whether they have p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidences and it cannot be expected of him to faithfully put the details of all such clearances/transactions in some register/records/electronic devices for any agency to come and lay hands on it. 19. We find that the coordinate Bench of the Tribunal, in the matter of Nova Petrochemicals v. CCE, Ahmedabad-II, in its Final Order Nos. A/11207-11219/2013, dated 26-9-2013, held as under (in Para 40) "After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenues which mainly are the following; (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 fini....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that in order to prove the allegations of clandestine removal the department must bring on record cogent, positive and concrete evidence to prove the said allegation, the said allegation cannot be sustained on the basis of assumptions and conjectures. We find, in view of the above, that the investigation and consequentially the allegation of clandestine removal, suffers from infirmities, the demand needs to be seen on the basis of corroborated evidence alone as per the discussions below. 21. Understandably, we are dealing with a case of tax-evasion and not a criminal case wherein the degree and standard of evidence is much higher and more precise. As far as the tax-evasion cases are concerned, we find that the principle of preponderance of probability has precedence over proof beyond doubt. It is widely accepted that 'Preponderance of probability' is met when a proposition is more likely to be understood by people of reasonable intelligence to be true than to be not true. Effectively, the standard is satisfied if at least there is 50% or more chance that the given proposition is believable by a reasonably prudent to be true. In this regard, Hon'ble Supreme Court i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on cannot be covered up by mere citing of the principle of preponderance of probability. A fine line of distinction requires to be drawn. Therefore, while accepting the fact that there are reasons to believe that there was evasion of duty on the part of the appellants, we find that the quantification of such duty evaded should be sustainable on the evidence available and needs to be arrived in a logical, rational and legally appropriate manner. 23. Coming to the brass-tacks of quantification, there are 2 sets of data. One data available from the hard disc from the alleged secret office and the data recovered from office premises. Learned Commissioner gives a finding that one who has indulged in clandestine removal of goods and consequent evasion of duty can hardly be expected to keep the evidence intact. This could true theoretically. But for practical purposes of quantification of duty evaded we cannot rely on assumptions, theories and guess work. It becomes very relevant in view of the fact that no corresponding enquiry, to establish relevant facts like procurement of raw material, use of the same in the factory of production, manufacture of excisable goods, sale of excisa....