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2019 (4) TMI 996 - AT - Central ExciseClandestine manufacture and removal - the entire case of the department is based on the documents recovered i.e. handwritten pencil ledgers at the premises of M/s Deepak Industries - corroborative evidences or not? - witnesses for cross- examination not produced by Department - HELD THAT:- The appellant requested for cross-examination of these witnesses, however, we find that the department was not able to produce these witnesses, as evident from the impugned order passed by the learned Commissioner. We find that it is well settled law that if the department is not able to produce their witness for cross- examination, then the said statements of those witnesses cannot be relied upon as held by Hon’ble High Court of Madras in the case of Karan Traders Vs Joint Commissioner of C. Ex, Salem [2016 (7) TMI 870 - MADRAS HIGH COURT]. The statements of Sh. Ravindra Singh, Proprietor of M/s Deepak Industries and Sh. Ajay Kumar Singh, Service-Senior Assistant of M/s Prakash Industries Ltd, cannot be relied upon and has to be eschewed from evidence - the department has also relied upon the documents recovered from the premises of the appellant, however, we find that there is neither any signature of the appellant or panchas or even officers of DGCEI, and the said documents have never been confronted to the proprietor of the appellant. This clearly raises a suspicion on the genuineness of the said documents, as rightly argued by the learned Counsel for the appellant, especially, when there is no other cogent and positive evidence adduced by the department in the nature of purchase of raw material, use of electricity, sale of final products, payment, realization of sale proceeds, mode and flow back of funds. There is no iota of evidence on records as per law - Appeal allowed - decided in favor of appellant.
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