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2019 (4) TMI 935 - CESTAT ALLAHABADClandestine manufacture and removal - clubbing of clearances - clearance of manufactured ingots clandestinely in the garb of scrap - it was alleged that Appellants were operating from the same common premises and were engaged in the manufacture and Clandestine removal the Zinc Ingots - HELD THAT:- It is evident that the records of the Appellant-Rishabh were picked up or resumed from their own premises located near Cannara Bank at Circular Road, Hathras without panchnama. We notice that the said claim of Appellant-Rishabh is duly supported by the letters of Smt Sandhya Maheswari and Shri Sandeep Maheshwari (Authorized representative of Appellant-Rishabh) both dated 8.01.2016 , intimating the facts to the Commissioner Central Excise, Agra . We do not feel that any further evidence was required to substantiate the claim. Linkage of the private records like Note Pads , Writing Pads and Register and the Computer print out with Appellant-Rishabh - HELD THAT- The observations of the Adjudicator are totally contrary to the admitted position in Para 6 and Para 18 respectively of the Show Cause Notice, which ruled out relevance of these documents with the Appellant-Rishabh. The fact of Smt Rashmi Jhawer’s organizing and handling business activities from Calcutta is unambiguously clarified by Shri Sandeep Maheshwari in his statement recorded on the spot, on the day of search on 08.01.2016. While specifying his own responsibilities in the activities of maintenance of the records of the Appellant-Rishabh, at Hathras. We do not find any evidence on record to support the Revenue’s claim of issue and /or service of any of the five summons to Smt. Rashmi Jhawar and thus her avoidance to tender evidence. Reliability on statements - HELD THAT:- The Adjudicator had denied cross–examination of Shri Santosh Jhawer , on the grounds of being co-accused and also at the same time relied on his statement recorded behind the back of the Appellant-Rashmi Jhawer , implicating Smt. Rashmi Jhawar. As per settled law, the statement of co-accused is a evidence but the statement of so claimed co-accused Shri Santosh Jhawer have been heavily relied against the Appellant-Rishabh, disregarding and by passing other direct evidences, is contrary to the settled law. Thus, it is convincing that the Appellants were operating and conducting their business from their respective premises and did not indulge in the manufacture of Zinc Ingots during the disputed period in the Show Cause Notice - the impugned order confiscating seized goods and confirming demand of duties and imposition of penalties is set aside - appeal allowed - decided in favor of appellant.
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