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2024 (1) TMI 633 - CESTAT NEW DELHIClandestine removal - demand based on the statement of Shri Amit Gupta and on the basis of documents recovered during the searches conducted in the various premises pertaining to said Amit Gupta - HELD THAT:- It is observed from the record of both these appeals that except the documents recovered from the various premises of Shri Amit Gupta, there is no other evidence. Most of those documents have been retrieved from the electronic gadget. No such certificate as is required under section 36B of Central Excise Act is placed on record to prove the authenticity and admissibility of those documents into evidence. In view of the said provision, the documents are not admissible. Shri Amit Gupta in his cross examination has even denied having any share holding in the business activity of any of the registered dealer companies as tabulated in the impugned show cause notice with the allegation that those registered dealer companies. Apparently, there is no search and recovery from the premises of the present appellants except that the statement of Shri Anil Goel, the appellant, was recorded. On perusal of the statement of said Shri Anil Goel, it is clear that he has outrightly denied receiving any cenvatable invoice without getting physical delivery of the goods. It is also observed that RG-23 Part I register has been placed on record by the appellants wherein all purchases of metal scrap/rods from M/s.Unanti Alloys were specifically recorded by the appellants. The department has failed to produce any document to falsify the contents of the said register. The register being documentary evidence should have precedence over the statement relied upon by the department. There has been no such recovery of document from premises of the appellant, it will not be out of place to hold that the department has proceeded based on the third party evidence to confirm the demand against the appellants. There has been catena of decisions wherein it has been held that third party evidence has no evidentiary value and that the same is not at all admissible in law. Thus, there is no evidence to prove that the appellants have availed cenvat credit on fake invoices without getting physical delivery of the goods - there are no reason for confirming the recovery of the said cenvat credit availed by the appellant - there is no question for imposition of penalty upon the appellant. Appeal allowed.
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