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2022 (12) TMI 452 - AT - Central ExciseClandestine manufacture and or removal - Goa brand gutkha - third party statements and evidences - admissible evidences or not - gross violation of principles of natural justice - HELD THAT:- The whole case of Revenue is made on the basis of the third party statements and some records and a note book recovered from the premises of M/s. G.M. Carriers, Bhiwandi. The entries in the said note book (private documents) are purported to have been made by one Mr. Javed Gamir Sheikh, an employee of M/s.G.M. Carriers, Bhiwandi, as stated by Mr. Javed Gamir Sheikh in his statement. He had deposed that these contain details of goods received from Jodhpur, both accounted and unaccounted. Mr. Javed Gamir Sheikh was not produced for cross examination by the Revenue, statement of whom was relied upon, who was the person, who claimed to have made the entries in abovementioned resumed note book and such entries were the basis for quantifying and raising the demand against the appellant. The partner of M/s. G.M. Carriers, Bhiwandi, Mr. A.A. Patni, in his cross examination has denied the maintenance of any such note book by them and has further contradicted the statement of Mr. Javed Gamir Sheikh, their employee. Thus, the said note book is not a reliable piece of evidence and further, the statement of Mr. Javed Gamir Sheikh is not an admissible evidence, as he was not produced for cross examination in violation of Section 9 D of the Act. There are no evidence of clandestine manufacture and removal of Goa brand gutkha has been found. The transporters of the appellant, M/s. KGN Transporter has not been investigated, at any stage. Further, admittedly, only minor /negligible variations have been found in the stock of the raw materials and finished goods in the course of inspection at the factory at Jodhpur. Admittedly, the documents resumed from Mr. Suresh B. Jajra are not related to this appellant but are related to other manufacturer like M/s. Royal Marwad, Ahmedabad, M/s. Meenakshi Foods Pvt. Ltd. and others. Such documents have been erroneously relied upon by the Revenue in demanding the duty under dispute. Mr. Suresh Jhajra has not supported the allegation of the Revenue during cross examination. The statements of the witnesses, which were relied upon by the Revenue have not stood the test of cross examination. Thus, the whole demand has been made on assumptions and presumptions. Appeal allowed - decided in favor of appellant.
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