TaxTMI 
TaxTMI 
2023 (4) TMI 825
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.... reflecting production and clearance of the same in their Daily Stock Account. 3.1 On the basis of investigations undertaken by the Department, it was alleged in the show-cause notice that the appellants had clandestinely manufactured and cleared 13,34,36,375 sticks of handmade branded biris from its factory between January, 2007 to September, 2008 without issuing any Central Excise Invoice and without accounting for the same in their official records. 3.2 The Departmental proceedings culminated into issuance of a show-cause notice demanding Excise duty to the tune of Rs.19,38,504/- [Basic Excise Duty = Rs.10,83,852/-, NCCD = Rs.1,33,441/-, Biri Cess = Rs.6,67,186/-, Education Cess = Rs.37,693/- & SHECess =Rs.16,332/-] besides proposing confiscation of seized goods, imposition of penalty and demand for interest under relevant provisions of law. 3.3 The show-cause notice was adjudicated vide order dated 30.08.2011. Further, it is noticed that the order passed by the ld. Adjudicating Authority is an exparte order inasmuch as the ld. Authority who had heard the matter failed to adjudicate it as he was transferred out of the jurisdiction. The incumbent adjudicating authority thus ha....
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.... present case is essentially made out to be a case of clandestine manufacture of labelled and unlabelled biris and their clearance without payment of duty and without issuance of proper invoices. The department, at the time of visit on 02.09.2009, seized labelled and un-labelled biris that were lying in the various rooms of the appellants' house and factory, besides the recovery of certain loose sheets, private and other statutory records. The demand for the alleged duty evasion for the period January, 2007 to September, 2008, is purportedly an outcome of the details contained in these private records. 5.1 While recovery of the private records from the premises of the appellant have not been disputed. The appellants have denied lack of complete knowledge thereto as well as its contents. It has been their case that the said register does not belong to them and could have been left behind at their premises by one of the several traders visiting their premises. It is on the basis of this register that the charge for duty evasion during the period January, 2007 to September 2008 has been worked upon. The appellant has however disputed the very ownership of the same, alleging that his ....
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....ngst several others. 5.3 The burden to establish the factum of clandestine clearance is upon the revenue and required to be established beyond all reasonable doubt and mere suspicion or sole entries in certain records whose authenticity itself is under challenge cannot be the singular yardstick to uphold such a contention - Sharma Chemicals Vs. CCE - 2001 (130) ELT 271 (Tri.). Further, it may be pointed out that let alone unimpeachable corroboration, there is no semblance or even an attempt to cross-verify the said entries in the records seized from the possession of the appellant. The mere testimony of some buyers without going into specific details of the numbers of biri sticks received without cover of invoices on a given day and its corroboration with clearance of the finished goods/the alleged private records is a crass failure to investigate the matter properly. 5.4 Further reliance on the statement of the buyers that they used to receive goods without cover of invoices also, without independent substantiation and cogent proof in support, is fraught with risk and is required to be corroborated by other factual assertions. This has not been so done in the present matter. The....
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....ts' case cannot be upheld. Also the assertion of clearance of goods on a predated invoice cannot be considered to implicate repeated clearance of goods, in the absence of any other independent evidence to corroborate the said facts. 7. Further, the appellants have strongly contended that they have been denied natural justice and were not offered cross-examination of the witnesses/buyers whose statement have been relied upon by the Department. I find that this request of the appellant, which is an important cannon for ascertaining the truth and justice delivery, has been cursorily brushed aside by the lower authorities. It is noted that both at the time of original adjudication and again in appellate proceedings, the appellant sought to cross-examine their buyers, who purportedly had stated in their statement, recorded before the authorities that they were supplied biris by the appellants without invoices. Cross examination is a substantive legal tool adopted in order to bring to the fore the truth and corroborate the testimonies of the witnesses to establish the contention beyond any measure of doubt. 8. It is settled law that the noticee has to be offered all reasonable opportun....