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2020 ] PRINCIPAL COMMISSIONER OF CGST & CENTRAL EXCISE v. SHAH FOILS LTD. 637
CENVAT on the basis of invoice without receipt of goods are not
sustainable.
7. With regard to sole evidence which has been relied upon by the De-
partment is only pen driver data and statement of brokers which were even self
contradictory, the Tribunal has held that :-
“Though the statement of directors has also been relied upon by the de-
partment, but we found that even in some statements they have stated that
the data found in pen drive do not belong to M/s. SFL and it belongs to
M/s. Sankalp. Inspite of fact that some of the statements were recorded in
presence of Snehil R shah who is director of M/s. Sankalp, but even then he
was not questioned about such data. At least the officers could have rec-
orded his statement to ascertain the truth. Even if the statements of director
are considered inculpatory the same cannot be relied upon in absence of
corroboration with material evidence as held in case of Tejwal Dyestuff Ind.
v. Commissioner - 2007 (216) E.L.T. 310 (Tri.) and 2009 (234) E.L.T. 242 (Guj.).
Thus the statement of directors cannot lead to inference that the goods stat-
ed in “Bombay Sales” ledgers are of Appellant. We also find that the bro-
kers have even stated that they have taken the goods from Vasai Godown
of M/s. SFPL. In such case there is no reason to hold that the Appellant has
dealt with M/s. SFL. Thus in both cases i.e. “Bombay Sales” and “Smi Cash
Sales” apart from the statements which are even contradictory no corrobo-
rative evidence. The Appellant has placed reliance upon various judgments
to canvas their point that in absence of corroborative evidence no demand
can be made. We find that no corroborative evidence has been stated in
show cause notice in the form of receipt of unaccounted raw material,
transportation of unaccounted such raw material to SFL factory, consump-
tion of unaccounted raw material, production of unaccounted finished
goods, production record of unaccounted finished goods, use of consuma-
bles, extra labour and excess consumption of electricity, clearance of goods
from the factory, receipt of cash from even a single person on account of al-
leged clandestine sale. We also find that the revenue did not undertake any
investigation at the end of M/s. SFPL from where the clearance of goods
has taken place. When the brokers had stated that the delivery was taken
from Vasai Godown which was under the ownership of M/s. SFPL, the of-
ficers should have made investigation. Thus in such circumstances, the de-
mand on account of clandestine removal cannot be made. In case of
Davinder Sandhu Impex Ltd. - 2016 (337) E.L.T. 99 (Tri. - Del.), the tribunal
has held that -
6. In this case during the course of investigation, the statement was rec-
orded and the statement given by Shri Baldev Singh, Managing Director
admits that there is a shortage of 10 to 15% for manufacturing the final
product and it is also admitted by Shri Baldev Singh that they have cleared
certain goods without payment of duty, but the said statement was retract-
ed by Shri Baldev Singh who claims to be that same has been recorded un-
der influence and duress, thereafter, another statement was recorded on 3rd
May, 2005 which was also retracted on the same day, where also same
statement recorded which is a typed one and it is the claim of the Revenue
that same has been typed by Shri Dinesh Kumar (who is an employee of the
appellant) in the office of the Department. To that effect, Shri Dinesh Ku-
mar filed an affidavit on 1st August, 2006 that the statement has been typed
by the officers of the Department themselves not by him and that said affi-
davit has not been controverted. Further, the cross-examination of Shri
Ashwani Kapoor, Inspector on 3rd August, 2006 explaining that wastage on
each stage of production have not been considered by the Adjudicating Au-
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