ORDER
C. Satapathy, Member (T)
1. Shri A. Hidayatulla, learned Advocate for the appellants submits that the impugned order has been passed holding that the appellants have not utilised 1971.448 MT of imported waste paper in the manufacture of the final product, but have disposed of the same elsewhere clandestinely thereby evading customs duty of Rs. 64,71,153/-, He states that there is no evidence for coming to the aforesaid conclusion except the statement of Shri Mangtani, Senior Vice-President of the appellant company. He produces a photo copy of the said statement to demonstrate that the relevant portion of the statement which is being relied on by the department has been interpolated. He also states that the statement is written by the handwriting of the Inspector, though Shri Mangtani is well educated to write his own statement. He states that if the statement is discounted, there is no other evidence to prove that there has been any non-utilisation of the imported raw material or its clandestine removal. He also states that the officer recording the statement was not allowed to be cross-examined despite specific request made in this regard.
2. Shri Hidayatulla, submitted a statement of input/output ratio for last six years as published in the annual report of the company showing annual yield varying from 73.32% to 79.24% (average 75.36%) for the period 1996-97 to 2001-2002. He states that these figures demonstrate that there is a process loss of about 25% and since the yield in the year 1996-97 was 74.95%, the shortage in raw material stock alleged by the department is attributable to the process loss and there is no clandestine removal as alleged by the department during the said year as the yield percentage remained more or less constant over all six years.
3. Shri A.K. Saxena, learned JDR appearing for the department supports the order of the Commissioner and states that the relevant statement which is alleged to have been interpolated has not been taken into account by the Commissioner and no penalty has been imposed on the officials of the company including Shri Mangtani giving them the benefit of doubt.
4. After hearing rival submissions and going through the case records, we are of the opinion that once the interpolated statement of Shri Mangtani is discounted, the department’s allegation of clandestine removal has no legs to stand on. Moreover, the yield percentage remaining more or less constant over all the years discredit the allegation of the department that during only one year there was clandestine removal of the raw material. Accordingly, we have no hesitation in setting aside the impugned order which is not based on sound evidence.
5. Appeal is allowed.