TaxTMI 
TaxTMI 
2024 (1) TMI 448
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.... Tribunal vide its Final Order No. S-855/A/2078/KOL/2007 dated 18/12/2007 after noting that several of the relied upon documents were not provided to the Appellant, directed the Adjudicating Authority to provide those documents and complete the adjudication process by following the principles of natural justice. The Adjudicating Authority claims to have provided all these documents to the Appellants and completed the Denovo proceedings and passed the impugned OIO on 05/05/2008 confirming the demand of Rs. 3,03,54,200/-. Being aggrieved, the Appellant is before the Tribunal. 3. The Learned Senior Counsel appearing on behalf of the Appellant submits that though the Adjudicating Authority was required to furnish all the documents, the same were not given to them. Though the Appellant has filed a letter on 13/02/2008 clearly stating that the required documents have not been made available to them, still the Commissioner has erroneously held that all the documents have been made available to the Appellant. He draws our attention to the list of relied upon documents given at Page 4 of the Show Cause Notice dated 27/07/2004. He submits that the Tendered document Nos. 1 to 11, 16, 18, 19,....
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.... back up to corroborate their allegation. He relies on the following case laws:- (i) Ambica Iron & Steel Pvt. Ltd. Vs. Comm. Of C. Ex., Cus. & S.T., Rourkela, 2022 (380) ELT 351 (Tri.-Kolkata) (ii) Commr. of Central Excise Vs. Saakeen Alloys Pvt. Ltd., 2014 (308) ELT 655 (iii) Rattan Industries Pvt. Ltd. Vs. Commr. of C. Ex., Kanpur- 2013 (290) ELT 442 (Tri-Del.) (iv) Hi Tech Abrasives Ltd. Vs. Commr. of C. Ex., & Cus., Raipur- 2018 (362) ELT 961 (Chhattisgarh) (v) Commr. of C. Ex., Kolkata-III Vs. Sai Sulphonate Pvt. Ltd., 2022 (380) ELT 441 (Cal) (vi) CCE & ST, Udaipur Vs. Mittal Pigment Pvt. Ltd., 2018 (16) GSTL 41 (Raj.) 6. In view of the foregoing, he submits that the confirmed demand is required to be set aside on merits. 7. He further submits that though the officials visited the Appellant's factory on 1st September 2001 and recorded the statement of A. K. Ladia on the same day, and also gathered various documents subsequently within the next few months, still the Department has issued the Show Cause Notice only on 27/07/2004. From the list of documents relied upon at Page No. 4 of SCN, he draws our attention to the fact that all the recordings of statements we....
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....ured goods took place. From the Show Cause Notice, it is also seen that except for some Recorded Statements, which all pertain to the officials of the Appellant, no statements have been recorded from any third parties like the alleged sellers of raw materials, purchasers of raw materials, transporters of the goods etc. No corroborative evidence whatsoever has been brought in respect of cash purchases, cash sales, movement of vehicles carrying clandestine purchase of raw materials and clandestine removal of finished goods. There is no evidence of the Department having gathered any private records, sheets, etc. towards such transactions. When the alleged value of the clandestinely removed finished goods is more than Rs. 50 crores, it is surprising that no effort whatsoever has been made by the Department to gather any corroborative evidence on the above issues. 12. The Tribunal in the case of Ambica Iron & Steel Pvt. Ltd. Vs. Commr. of C. Ex., Cus. & St, Rourkela cited supra has held as under:- 14. The clandestine manufacture and removal of excisable goods is to be proved by tangible, direct, affirmative and incontrovertible evidences relating to (i) Receipt of raw material inside....
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.... any incriminating record/document to suggest any flow back of cash etc. The Revenue authorities in this case have failed to discharge the burden of proving the serious charge of clandestine clearance or undervaluation with cogent and clinching evidence. It has been consistently held that no demand of clandestine manufacture and clearance can be confirmed purely on assumptions and presumptions and the same is required to be proved by the Revenue by direct, affirmative and incontrovertible evidence, as has been held in the following cases :- * Bihar Foundary & Castings Ltd. v. CCE, Ranchi [2019 (8) TMI 527- CESTAT, Kolkata] - Para 18 * Continental Cement Company v. Union of India [2014 (309) E.L.T. 411 (All.)] - Para 12 * Balashree Metals Pvt. Ltd. v. UOI [2017 (345) E.L.T. 187 (Jhar.)] - Para 5(vi) * CCE, Meerut-I v. R.A. Castings Pvt. Ltd. [2012 (26) S.T.R. 262 (All.) = 2011 (269) E.L.T. 337 (All.)] * Popular Paints and Chemicals v. CCE & Customs, Raipur [2018 (8) TMI 473 (Tri. - Delhi)] - Para 17 18. The Learned Commissioner has asserted in the impugned order that the demand based on the Kacha Chithas and the statement of Director is sustainable and that no furth....
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.... sole retracted statement. The same are required to be proved by producing sufficient & positive evidence of clandestine removal. Apart from that as already observed the weighment of the stock was not actually done and as such shortage arrived at on the basis of arithmetical and calculative methods cannot be accepted. 11. In view of the foregoing discussions, I set aside the impugned order and allow the appeal with the consequential relief to the appellant. [Emphasis supplied] 14. The High Court of Chhattisgarh in the case of Hi Tech Abrasives Ltd. Vs. Commr. of C. Ex. & Cux., Raipur, cited supra has held as under:- 9.4 The legislative scheme, therefore, is to ensure that the statement of any person which has been recorded during search and seizure operations would become relevant only when such person is examined by the adjudicating authority followed by the opinion of the adjudicating authority then the statement should be admitted. The said provision in the statute book seems to have been made to serve the statutory purpose of ensuring that the assessee are not subjected to demand, penalty interest on the basis of certain admissions recorded during investigation which may ....
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....than in the case of Commr. of C. Ex. & S. T., Udaipur Vs. Mittal Pigment Pvt. Ltd., cited supra has held as under:- 6.3 Consequently, we are of the considered view that the department has not discharged its burden of conclusively proving the case of suppressed production and clandestine clearance by the appellants. In this regard we seek support from Hon'ble Allahabad High Court's decision in the case of Continental Cement Company v. Union of India - 2014 (309) E.L.T. 411 (All.) and Supreme Court's decision in the case of Oudh Sugar Mills Ltd. v. Union of India - 1978 (2) E.L.T. J172 (S.C.) and CESTAT's in the case of Punalur Paper Mills Ltd. v. CCE - vide Final Order Nos. 996-997/2008, dated 26-8-2008. The Hon'ble High Court in the case of Continental Cement Company (supra) has inter alia observed as under : 13. ..... to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department.... 14. ....... 15. ...... When there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible........." 7. ....