TMI Blog2015 (4) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... f proving this would be on them for which no evidence has been produced. Though, the appellant plead that Sh. AK Maheshwari had certain grievances against the appellant company and the production sheets had been prepared on his instruction, this plea would not be valid in respect of the production sheets pertaining to June 2003, when Sh. AK Maheshwari was not working with the appellant company. It is only the production recorded in the 40 sheets recovered from the factory premises of the appellant company which can be taken into account for determining the actual production of the appellant company on the respective dates. Accordingly, the duty demand has to be re-quantified based on the 40 production sheets recovered from the appellant company. - since in a number of such sheets there is overlapping of the timings of the shifts, the benefit in this regard has to be given to the appellant - Impugned order is set aside - Matter remanded back - Decided in favour of assessee. - Excise Appeal No. E/2770-2771/2007 –Ex [DB] - Final Order No. 51022-51023 /2015-Ex(Br) - Dated:- 25-3-2015 - Hon'ble Mr. Rakesh Kumar, Member (Technical) And Hon'ble Mr. S. K. Mohanty, Member (Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resignation in May 2003 and also with other employees of the appellant company - Sh. SS Trivedi, Manager and authorized signatory who succeeded Sh. AK Maheshwari, Sh. Vikram Singh Permar, Production Manager, Sh. Gopal Gupta and Sh. Sunil Mishra, helpers in the production Department. Subsequently, the inquiry was also conducted with Sk. KK Somani and his statement was recorded. After inquiry with SH. AK Maheshwari, Sh. KK Somani and other employees of the appellant company, the investigating officers were of the view that the 40 sheets seized from the factory premises of the appellant company and 19 sheets seized from the residential premises of Sh. AK Maheshwari contained date wise details of production of bars and rods during June 2002 and January 2003 respectively. The production as recorded in these sheets, pertaining to January 2002 and June 2003 was totalled up and after taking into account the production which was recorded in the RG-1 Register during these months, the balance production appeared to be the unaccounted production which appeared to have been cleared clandestinely without payment of duty. Accordingly, the investigating officers were of the view that production o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he filed cases against the appellant company before the Labour Commissioner, Special CJM, Kanpur, Labour Court, Lucknow, Civil Judge (SD) Kanpur, etc., that the so called production sheets are the documents which were got fabricated by Sh. AK Maheshwari and do not represent the production, that as is clear from the cross examination of Sh. Sunil Mishra and Sh. Gopal Gupta, they had not put the dates in the sheets, that the dates had been put by somebody else and this fact is clear from the manner of writing of the date and the manner of writing of the other entries, that initially the 40 sheets which, as per the punchnama, were recovered from the factory, had not been found and when the officers were leaving the factory, one of them received a call from Sh. AK Maheshwari and only on the receipt of the call, that the officers entered into the factory again and at that stage only, the file containing 40 sheets was recovered, that this shows that the search had been conducted at the instance of Sh. AK Maheshwari and it is Sh. AK Maheshwari who has got these documents fabricated and had placed the same at a place which was known to him only, that for this reason only the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing penalty on the company as well as Managing Director is not sustainable. 4. SH. RK Grover, the Ld DR, defended the impugned order by reiterating the findings of the Commissioner and emphasized that the production sheets bear the signatures of Sh. Sunil Mishra and Sh. Gopal Gupta who were the supervisors in the production department, that the allegation that the production sheets had been fabricated by these two persons on the instructions of Sh. AK Maheshwari who had grievance against the appellant company is difficult to believe, as Sh. AK Maheshwari was coming to the factory till October 2002 and therefore, while the production sheet for January 2002 had been prepared when he was in the employment of the appellant company, the production sheets of June 2003 had been prepared at the time when Sh. AK Maheshwari had left the job and at that time Sh. Gopal Gupta and Sh. Sunil Mishra were not under obligation to obey his directions and therefore, it cannot be said that all the production sheets had been prepared by Sh. Sunil Mishra and Sh. Gopal Gupta under the pressure of Sh. AK Maheshwari, that Sh. Sunil Mishra and Sh. Gopal Gupta have not retracted their statements, that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timings of the shifts are overlapping and therefore, no credibility should be attached to these sheets. The Department s contention on the other hand, is that these sheets had been prepared by Sh. Sunil Mishra and Sh. Gopal Gupta who were the supervisors in the production department, and that these sheets represent the actual production on the respective dates, and that since, from October 2002, Sh. AK Maheswari was not coming to the factory, in respect of the production sheets of May 2003, no doubt can be raised about their genuineness, as during that period Sh. Sunil Mishra and Sh. Gopal Gupta were under no obligation to obey the direction of Sh. AK Maheswari. 7. Under section 36 A of the Central Excise Act, 1944 where any document is produced by any person or has been seized from the custody or control of any person, under this act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is jointly prosecuted with him, the court shall, unless the contrary is proved by such person, presume the truth of the contents of such documents and admit the document in evidence. In our view, the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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