TaxTMI 
TaxTMI 
2024 (6) TMI 374
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.... dated 14.10.2016 passed by the Principal Commissioner of Central Excise, Customs and Service tax, Rajkot. 1.1 Briefly stated the facts of the case are the appellant, M/s. Nishtha Automation is engaged in the manufacture of Diamond Polishing machines. On the basis of intelligence that the appellant has been indulging in clandestine removal of excisable goods and wrongly availing the benefit of Notification No. 8/2003-CE dated 01.03.2003, a search was conducted on 09-08-2011 in the factory premises of the appellant. In the course of search, certain documents were resumed. Statements of partners, employees and others persons were recorded, which have been relied upon in the show cause notice. On the basis of scrutiny of the documents resumed....
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....ndestine removal has been worked out as per entries and records available in diary seized as per Sr. No. 13 of Annexure-A to the panchanama. As clarified by Shri Triloki in his statement dated 04.09.2012 in reply to question No.9 and 10 details in book No. 13 also includes the details of the order received for respective machines and mentioned in book at serial No. 8,9,12 and 14. He had also clarified that the other entries were made as directed by Shri Sureshbhai. But the department has not recorded any statement of said Shri Sureshbhai. Therefore, the basis for the demand on book No. 13 is bad in law and cannot be sustained. Further, in reply to the show cause notice request was made to allow the cross examination of the witnesses. The Ad....
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....ar Products 2023-9-Centax-231(Tri. Ahd) M/s Mahendra Metal Industries - Final Order No. A/10067-10068/2019 Oudh Sugar Mils Ltd. - 1978(2)ELT (J172)SC Shri Krishna Industries - 2020(372)ELT 121 (Tri. Ahd) Vishwa Traders Pvt. Ltd. -2013(287)ELT 243 (Guj) Gupta Synthetics Ltd. - 2014(312)ELT 225 Shree Sidhbali Ispat Ltd. - 2017(357)ELT 724 (Tri. Mum) Chhajusingh S. Kanwal - 2011(272)ELT 202 (Guj) Flevel International -2016(332)ELT 416 Hingora Industries Pvt. Ltd. - 2015(325)ELT 116 (Tri. Ahd) Pravin N. Shah -2014(305)ELT 480 (Guj) Narendrabhai Naginbhai Bhut 2014(306)ELT 451 3. On the contrary, Shri R.R. Kurup, the Learned Superintendent (AR) for the Revenue justified the findings of the Learned Commissioner and submitte....
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....e a doubt but it cannot take place of evidence. Merely on the basis of said diaries, or on mere statements of some persons, may even be responsible officials of the manufacturer or even of its Directors/partners who were not even permitted to be cross-examined, demand of clandestine removal of the goods is not sustainable. 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 the factory premises, and non-accountal thereof in the statutory records; (ii) Utilization of such raw material for clandestine manufacture of finished goods; (iii) Manufacture of finished goods with reference to installed capacity, consum....
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....the adjudicating authority to cross examine the persons whose statements were recorded by the investigating agency, only thereafter such statements can be used for adjudication of the SCN. Since admittedly the adjudicating authority has refused cross examination of persons, there is clear violation of principles of natural justice. In this case, the statements cannot be used as evidence against the assessee. 4.2 We also find that the allegation of clandestine removal is also based on the computer printouts seized at Serial No. 1 of the Annexure-A to Panchnama dated 09.08.2011 containing certain details of sale transaction, outstanding amount etc. We find that the computer printouts also did not satisfy the conditions prescribed under Secti....