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2015 (4) TMI 738 - AT - Central ExciseCENVAT Credit - Shortage of goods found - Documents seized from assessee's premises - Held that:- Under section 36 A of the Central Excise Act, 1944 where any document is produced by any person or has been seized from the custody or control of any person, under this act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is jointly prosecuted with him, the court shall, unless the contrary is proved by such person, presume the truth of the contents of such documents and admit the document in evidence. In our view, the provisions of section 36A would be applicable in respect of 40 sheets recovered from the factory since, these sheets have admittedly been prepared by Sh. Sunil Mishra and Gopal Gupta, the person working in production department of the appellant company and this fact has been accepted by them. Therefore, if the appellant pleads that the entries in these production sheets do not pertain to the production of the factory on the respective dates, the burden of proving this would be on them for which no evidence has been produced. Though, the appellant plead that Sh. AK Maheshwari had certain grievances against the appellant company and the production sheets had been prepared on his instruction, this plea would not be valid in respect of the production sheets pertaining to June 2003, when Sh. AK Maheshwari was not working with the appellant company. It is only the production recorded in the 40 sheets recovered from the factory premises of the appellant company which can be taken into account for determining the actual production of the appellant company on the respective dates. Accordingly, the duty demand has to be re-quantified based on the 40 production sheets recovered from the appellant company. - since in a number of such sheets there is overlapping of the timings of the shifts, the benefit in this regard has to be given to the appellant - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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