Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2018 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (6) TMI 1342 - AT - Central ExciseClandestine manufacture and removal - allegation based on Computer printouts allegedly taken from hard disk shown to be resumed from Geeta Nagri office, Bijnore, Statements of various persons, alleged confession by suppliers of MS ingots and buyers of Saria (M.S. Bars) and alleged confession by Shri Lalit Agarwal etc. - cross-examination of witnesses - CENVAT credit - Rule 9(5) of Cenvat Credit Rules - penalty u/r 26 - Confiscation of cash and its release. Held that:- The Hon'ble High Court of Delhi in the case of CCE vs. Vishnu & Co. Pvt. Ltd. [2015 (12) TMI 593 - DELHI HIGH COURT], has held, that it was the responsibility of the Revenue to produce prosecution witnesses for cross examination, therefore, we do not find the finding by the Original Authority tenable that cross examination could not be offered because the appellant could not produce the prosecution witnesses - it was obligation on the part of the Revenue to produce its witnesses for cross examination. From the impugned Order-in-Original if the statements recorded in respect of the above stated persons are removed, then there is no evidence left for arriving at the conclusions drawn by the Original Authority. The statements of above stated persons were relied upon for alleging that the Geeta Nagari, Bijnore premises was taken on rent by the appellant, the computer was purchased by the appellant, Shri Bhagirath Roy, Shri Monmohan Gautam were employees of appellant and they were making entries in the computer on behalf of appellant and that the said entries revealed that the extra/unaccounted goods were manufactured by the appellant and clandestinely removed. All these conclusions do not have any other basis, than the statements of above stated persons, and as directed and ruled by Hon‟ble Allahabad High Court, the statements of above stated persons cannot be relied as evidence, since they were not produced for cross examination. Therefore, the findings by the Original Authority to arrive at a conclusion and passing of the present order has no basis. Regarding Parmarth Steel & Alloys Pvt. Ltd. - Held that:- It is clear from the records that the case of Revenue against Parmarth Steel & Alloys Pvt. Ltd., is not based on any record resumed during search at the factory premises of Parmarth Steel & Alloys Pvt. Ltd., but is based solely on the statements of Sheeru Malik, AasMohd. & Idris, who were not produced by Revenue for cross-examination, hence in view of the law discussed above, demand of duty against Parmarth Steel cannot be sustained. In respect of Kamakhya Steel Pvt. Ltd. - Held that:- The whole demand is based on assumption and on the basis of statements which are not a good piece of evidence as discussed hereinabove. Accordingly, demand in respect of Kamakhya Steel Pvt. Ltd., is also set aside alongwith penalty. They shall also be entitled to consequential benefits. Since the demands are not sustainable no penalties are sustainable. Appeal allowed.
|