TMI Blog2011 (6) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011-EX(PB) - Dated:- 29-6-2011 - Mr. Justice R.M.S.Khandeparkar, Mr. M. Veeraiyan, JJ. Present for the Appellant: Shri R.K.Verma, SDR Present for the Respondent: Shri S. Malhotra, Advocate PER: M.VEERAIYAN This is an appeal by the department against the order of the Commissioner (Appeals) No.01/CE/Appl/Ldh/2005 dt.14.1.05 by which order of the original authority dt.7.4.04 dropping the demand of Rs.31,93,380/- was upheld. 2. Heard both sides. 3. Relevant facts, in brief, are that the officers intercepted one truck on 20.05.96 which was returning to the factory of the respondents after delivering a consignment of ingots to a party M/s.Saeco Iron and Steel Mills. The person in the vehicle was carrying back the original, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icles mentioned in the private records were recovered. On the basis of investigation a show cause notice was issued proposing a demand to the extent of Rs.32,64,395/- and proposing penalty on the respondent company and the director of the respondent company. The respondents contested the show cause notice. The original authority dropped the demand of Rs.31,93,380/-. He has doubted the documents recovered from Shri John Masih who was only a kanda in charge and therefore he was not expected to maintain heat records of the furnace of the factory. He has also held that no evidence was adduced regarding the engagement of Shri Avtar Singh to work as thekedar. He also doubted the evidentiary value of the photocopies of the documents recovered. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were brought back alongwith empty trucks. This may lead to a suspicion that perhaps the invoices were meant to be used for transportation of the goods once again. Suspicion cannot take the place of evidence. 6.2 The department alleged recovery of private records which were maintained by Shri John Masih/Shri Avtar Singh. How Shri John Masih was concerned with maintaining the heat records of the furnace has not come out during investigation. Shri John Masih was only a kanda in charge. In an affidavit dt.16.9.02, he had stated that he had no exact knowledge about the production of the goods in the factory. Further, there is no evidence relied upon to show that Shri Avtar Singh was contractor working for the respondent- company. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition as claimed by the department it is a clear case of failure to gather necessary evidence to support the allegation. 6.5 As already mentioned there was no difference in stock found by the officers on the date of visit. The authenticity of documents relied upon and the locus standi of the persons who have explained the documents have not been bought out. There is no admission of unaccounted production and clandestine removal by any of the authorised persons. There is no corroborative evidence relied upon in support of entries in the private records sought to be relied upon especially when their authenticity is in serious doubt. 7. Under these circumstances, we hold that the original authority has rightly appreciated the evidences and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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