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2016 (2) TMI 532 - CESTAT NEW DELHI

2016 (2) TMI 532 - CESTAT NEW DELHI - TMI - Clandestine removal of branded Gutkha - entire demand has been confirmed on the basis of seized documents from third parties - statement of third parties - denial of cross examination - violation of provisions of section 9(D) of the Central Excise Act, 1944. - Held that:- In the impugned order, the statement of appellants were relied upon by the adjudicating authority to allege clandestine manufacture and removal of goods. We find that all the appellan .....

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pta who is prime witness of the case was not examined and is not made the party to the case. In the light of the decision of this tribunal in the case of M/s. Aswani & Co. [2014 (12) TMI 1213 - CESTAT NEW DELHI] and the discussion herein above, the case of the revenue remains inconclusive. Therefore, we hold that investigation conducted by the Revenue having loopholes is not proper. Accordingly, the allegation of clandestine manufacture and removal of goods is not sustainable. Consequentially, t .....

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against the impugned order confirming the demand of duty of ₹ 4,50,64,179/- along with interest and equivalent amount of penalty. Shri Avinash M Baliga, S Rao and Shri Pawan M Prabhu are also in appeal against the impugned order for imposing penalty of ₹ 5 lakh each. 2. As impugned order is arising from a common investigation, therefore all the appeals are taken together for final dispoal. 3. The facts of the case are that on intelligence by DGCEI that M/s. Balajee Perfumes (M/s. BP .....

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by road through the transporters namely, M/s. Lion Roadway, M/s. Uday Roadlines, M/s. Puja Roadways etc. Further investigation made to the Railway authorities at Hubli, Belgaum and Kankanadi (Mangalore) and the details of the Railway Receipt No. (RR No.) date of booking, number of bags dispatched and the name of the consignor and consignee were obtained wherein it was found that bookings were made in fictitious names by misrepresenting the description of the goods as sweet supari / Meethi supar .....

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hat during the period August, 2001 to September, 2004, 33,053 bags were booked through Railways. Thereafter, the statements of Shri Pawan M Prabhu and Shri Avinash M Baliga and Shri Suresh Rao were recorded. On the basis of statements, various records recovered during the course of search and railway receipts, a show cause notice was issued to demand duty of ₹ 7,88,64,986/- on 33053 bags of gutkha on the allegation that M/s. BP has cleared Maruti, Ajeet and Kaveri branded Gutkha having MRP .....

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in two parts namely, for the period April, 2004 to October, 2004 on the basis of small books seized from the premises of M/s. Devakikrishna Traders of Hubli who was the distributors of M/s. BP. The second quantification is for the duty demand for the period October, 2001 to March, 2004 and duty of ₹ 1,03,94,055/- was also confirmed on the quantity of 4529 bags of Maruti Gutkha cleared to M/s. Damodar Traders as per the diary seized from proprietor thereof. 3.1 Against the allegations, lear .....

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f cross examination is in violation of provisions of section 9(D) of the Central Excise Act, 1944. Therefore, on this sole ground, impugned order is required to be set aside in the light of decision of M/s. Aswani & Co. [Final Order No. A/54559-54565/2014] dated 2.12.2014 wherein it has been held that no reliance can be placed on the statements which have not been examined under section 9D (1) (2) of the Central Excise Act, 1944. 3.2 He further submits that the whole case is based upon the a .....

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ng at the top that the same were details of consignments of gutkha / sweet supari /meethi supari / zarda suparai /kirana except choti/ general goods consigned to Hubli Railway station or to Belgaum Railway station. As the Railways department has never stated that these consignments were booked by M/s. BP, but they only certified that the consignments were booked as gutkha / sweet supari /meethi supari / zarda suparai /kirana except choti to Hubli Railway station and Belgaum Railway station. 3.3 .....

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Gutkha was booked from Delhi to Hubli by describing kirana except choti. It is observed by the authorities that none of the persons either the partners of M/s. BP or any of the dealers have been examined for the details furnished by Railways with regard to the description of goods and it was held that no records were available for the consignments and the Commissioner relied upon the number of bags entered in the diaries of Shri Pawan M Prabhu and Shri Avinash M Baliga. The learned Commission .....

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t was not open for her to confirm the duty demand only on uncorroborated evidence, more especially the same was third party evidence and did not show any sale and purchase of Maruti brand gutkha. The diaries recovered from Shri Pawan M Prabhu cannot be relied when Shri Pawan M Prabhu categorically stated that he was dealing with numerous items such as supari, gutkha, beedi, cigarettes stationary items sweets and confectionary items and for this fact Shri Pawan M Prabhu has filed an affidavit bef .....

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the said entries cannot be connected with the brands of Maruti, Ajeet and Keveri gutkha which are manufactured by M/s. BP. It is further submitted that the diaries seized from the premises of M/s. Damodar Traders nowhere indicated that same pertain to any clandestine receipt of gutkha from M/s. BP. It was further submitted that the learned Commissioner did not allow the cross examination of various witnesses and three buyers namely, Shri Pawan M Prabhu, proprietor of M/s. Devakikrishna Traders, .....

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rse of adjudication proceedings. 3.5 He further submits that the reliance has been placed on the statement of Shri Varun Gupta, Managing Director of M/s. BP dated 30.1.2006. With regard to this, he submits that initial statement of Shri Varun Gupta was recorded on 7.10.2004 in Hindi at Delhi whereas his second statement was recorded at Belgaum in English, who has also filed an affidavit before the ld. Commissioner and the same has not been examined. It is submitted by the learned counsel that th .....

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I cannot exactly tell about this. However, I accept that we have cleared this quantity as also other quantities as entered dated wise in the diary seized as above. This answer itself is contradictory as once he stated that he could not exactly tell about the contents of the diaries and on the other hand he is accepting the contents of the diaries. The same thing has happened with the diaries seized from M/s. Devakikrishna Traders, Hubli. 3.6 The department has heavily relied on the statement o .....

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ri Pawan M Prabhu cannot be relied upon. He further submits that on perusal of the diaries on the left hand side and right hand side some descriptions have been given in the abbreviated words as well as there some names and surnames which have been mentioned but there is nothing to connect the same with M/s. BP. In such a case, it cannot be understood how Shri Varun Gupta could instantly agree in answer to question No. 14 that the quantities entered date wise were pertaining to the quantities of .....

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ches of Maruti brand gutkha. To corroborate this, the railway receipts (according to which) M/s. BP cleared 10091 bags to Hubli, Belgaum or kankandadi, Mangalore clandestinely. He submits that as these two evidences are proved to be unsustainable, untenable and factually incorrect, therefore duty for the period April 2004 to October 2004 cannot be demanded. Infact, the same quantification is based upon information gathered in the form of small diaries seized from the premises of M/s. Devakikrish .....

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₹ 1,34,000/- only and it was assumed by the department that M/s. BP has received 3370 quintals of supari from the said firm which was accepted by Shri H S Sooryanarayana who was confronted with the diaries seized from M/s. Devakikrishna Traders and has accepted having supplied supari to M/s. BP and M/s. Assam traders only of ₹ 1,34,000/-. He nowhere accepted that he had supplied 3370 quintals of supari to M/s. BP during the period April, 2004 to October, 2004. Therefore, the said ev .....

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ti brand Gutkha . Even this question has not been asked from Shri Varun Gupta to this effect. Therefore, the capacity to manufacture such a huge quantity has not been verified. He further submitted that the statement of Shri Pawan M Prabhu,Shri Avinash M Baliga, Shri Suresh Rao, cannot be relied upon in the absence of any corroborative evidence by independent evidences. This case has been made on the basis of diaries seized from the premises of co-noticees and their oral evidence but no independ .....

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thout the cover of any invoice through railway or various transporter of M/s. BP through distributor located in Hubli, Belgaum or kankandadi Mangalore. The case has been made out on the basis of information received by DGCEI and the investigation was started wherein the Railway was asked to furnish the details of dispatch from Hazarat Nizzamudin Railway station, New Delhi to Hubli station in respect of goods given description as kirana except choti. On the basis of details of railway receipts re .....

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re engaged in clandestine manufacture and clearing of gutkha without payment of duty or raising invoices. The learned AR submits that as per various statements of persons recorded during the course of investigation itself has corroborated with the records seized, therefore, the impugned order is to be sustained. He further submits that M/s. Devakikrishna Traders, Hubli were dealing with M/s. BP and Shri Ajay Gupta who is younger brother of Shri Abhey Gupta who is father of Shri Varun Gupta, part .....

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tine activity. The activity of clandestine removal of goods can be revealed from personal knowledge as held by Honble High Court of Gujarat in the case of Magan Lal Gulap Chand Shah vs. Union of India [1992 (59) ELT 235]. He further submits that in the case of Jagdish Shankar Trivedi vs. Commissioner of Customs, Kanpur [2006 (194) ELT 290 (Tri-Delhi)] denial of cross examination of inculpatory statement of dealers and owners is not breach of natural justice. In the facts and circumstances of th .....

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n M Prabhu, Shri Avinash M Baliga and Shri Varun Gupta. Therefore these are corroborative evidence to clandestine manufacture and clearance of the goods. He submits that although the production capacity of the appellant was verified by itself by manufacture of such a huge quantity by them, no such demand has been made at the time of testing the machine. It is also submitted that the payments towards the clandestine removal of the goods was effected from demand due or the amounts were settled in .....

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ion in the form of illustration of some of the RRs and the entries made in the pocket diaries recovered and seized from Shri Prabhu, Shri Baliga and also chits retrieved from the residence of Shri Varun Gupta. Such illustrative co-relation is appearing as Annexure C 11 and C 14 of SCN and extending the logic of this illustrative co-relation proposing that entire dispatches made through railways as appearing in the data provided by railway authorities of the goods dispatched from Nizammudin to Hu .....

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bags were recorded to have been received under Diary number 9 of Shri Baliga at Belgaum. (ii) However, the Adjudicating Authority discounted all those entries appearing in the Diary which were explained to be not related to Maruti Gutkha inasmuch as that the entries which were qualified with the description such as Classic or SJ were not taken into consideration for computing the number of bags of Maruti Gutkha received by Mr. Avinash Baliga. Further, such of the entries in the diary which had c .....

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(iii) The diaries recovered at Shri Avinash M Baliga cannot be relied as an authentic document, since it was evident from the entries made therein it relates to all goods that he was dealing. This fact can be proved if one had a look on the entries and will find that in form of a few entries CLASSIC, SJ had been written and at some places, Classic, to their knowledge it was also a brand of gutkha. They did not know anything about SJ, it could be anything. On the contrary there was no indicati .....

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department that maruti gutkha was transported under the specific Railway Receipt with documentary evidences demand was not sustainable. Therefore, impugned order is to be upheld. 5. Heard the parties. Considered their submissions in detail. 6. We find that this case has been booked against the appellant on the basis of a) Railway receipts; b) diaries recovered from the premises of dealers /distributors; and c) on the basis of statements of Shri Varun Gupta, Shri Pawan M Prabhu, Shri Avinash M Ba .....

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raders. We have gone through the statement of Shri Pawan M Prabhu who has accepted as under:- M/s. Devaki Krishna Traders is a proprietary concern started in the year 1989-90 and I am the proprietor of the same. We are engaged in trading of supari, gutkha, beedi, cigarettes, stationary items, sweets and confectionery items etc. For the last six to seven years we are also working as distributor of Maruti branded gutka manufactured by M/s. Balaji Perfumes, Delhi. Earlier i.e. about three years bac .....

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8377; 1 per pouch. 8. On going through the statement, we find that M/s. Devakikrishna Traders, is proprietorship of Shri Pawan M Prabhu have been dealing with one Shri Ajay Gupta of M/s. BP. All the orders were placed to Shri Ajay Gupta and all the payments of the said goods were made to Shri Ajay Gupta or on the direction of Shri Ajay Gupta. Moreover, the payments were made to one M/s. Hostota Arecanuts Traders, Shimoga on behalf of Shri Ajay Gupta who deals in supari with M/s. Hostota Arecanut .....

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lf of M/s. BP to M/s. Devakikrishna Traders, distributor was not investigated to prove the case of the Revenue. In the absence of any investigation made to Shri Ajay Gupta, the truth of the case cannot be revealed. It is not the case of the Revenue that Shri Ajay Gupta and Shri Varun Gupta is the same person and it is not admitted by Shri Varun Gupta that he has authorized Shri Ajay Gupta in dealing with the distributor M/s. Devakikrishna Traders on his behalf or on behalf of M/s. BP, the invest .....

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on received from the railways. Railways has given that extract of transportation of the goods during the impugned period wherein the query was made to Railway that a case has been booked against M/s BP New Delhi who manufacture gutkha under brand name of Maruti, Ajeet and Kaveri for evasion of Central Excise duty. The said gutkha is booked in Indian Railways from Hazrat Nizzamuddin Railway station. In the invoice raised for this purpose the description of the goods is given as kirana goods excep .....

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ri etc. as sought by the excise department. The actual contents of the said parcel are unknown to us. 12. We have seen that details furnished by Railways are vague and even the learned Commissioner itself in the impugned order has found no basis to rely on the details given by the Railways, to allege clandestine removal of the goods. Therefore, the Railway receipts cannot be the basis to make the case of clandestine removal of goods. Therefore, the said evidence is not admissible. 13. Revenue ha .....

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value. Moreover, the contents of diaries are not self-explanatory. Therefore, in the absence of any corroboratory evidence to the contents of diaries, the diaries recovered during the course of investigation are not relatable evidence to allege M/s. BP for clandestine removal of goods or clandestine receipt of goods by the distributor / traders. 14. In the impugned order, the statement of appellants were relied upon by the adjudicating authority to allege clandestine manufacture and removal of g .....

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, we rely on the decision of this Tribunal in the case of M/s. Aswani & Co. (supra) wherein this Tribunal has observed as under:- 38. After having observed as above, we may now refer to various decisions, relevant on the issue. The Tribunal has already, in the earlier order passed in the case of M/s Ashwani & Co., based upon the same set of investigations has granted them relief on the ground that the evidence adduced by the Revenue was not sufficient enough to conclude against the asses .....

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essesfactory in which case the onus may get shifted to him for explaining the presence of RRs in his premises. We have already referred to the Tribunal decision in the case of Charriot Cement Co., on the sad issue. Further, reference can be made to the Hon ble Supreme Courts decision in the case of Collector of Customs Bombay vs. East Punjab Traders 1997 (89) ELT 11 Supreme Court. It is to be seen that RRs relied upon the Revenue are not in the name of the appellant in which case, the onus to es .....

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s allowed to be cross examined for testing the correctness of his statement. Reference in this regard can be made to the Honble Supreme Courts Decision in the case of Godrej Pacific Tech Ltd. vs Computer Joint India Ltd. 2008 (228) ELT, 507 Supreme Court; Shalimar Rubber Industries vs. Collector of Central Excise, Kochin 2002 (146) ELT, 248 Supreme Court; Aryan Abushan Bhandar vs. UOI 2002 (148) ELT 25 and Laxman Export Ltd. vs. Collector of Central Excise 2002, 143 ELT (21) Supreme Court. In a .....

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in breach of natural justice and can not be accepted on the ground that no prejudice would be caused to the appellant for reason of non production. In the case of Laxman Exports Ltd., the Honble Supreme Court observed that denial of cross examination of raw material supplier results in denial of the appellants right to contest the veracity of the statement made by the other person and accordingly the Honble Supreme Court set aside the majority order of the Tribunal vide which the denial of cros .....

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heir genuineness. For the above proposition reference can be made to Bombay High Court decision in the case of Commissioner of Customs Mumbai vs. Foto Centre Trading Co. 2008 (225) ELT 193 Bombay; Radhey Shyam Kanoria 2006 (197) ELT, 130 Tribunal Mumbai; Pioneer Industries 2006 (193) ELT 506 Tribunal Mumbai & Rutwi Steel and alloys 2009 (243) ELT 145 [Tri. Ahmadabad]. Infact the list is never ending and reference to all the decisions cannot be made. 39.2 As regards the onus and production of .....

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val based upon the private records seized from the assessee himself cannot be appreciated without corroborative evidence of corresponding raw material or excess disposal. 40. The Tribunal in the case of Charminar Bottling Co. Pvt Ltd Vs. Commissioner of Central Excise, Hyderabad, 2005 (192) ELT, 1057 [Tri. Delhi] held that the charges of clandestine removal based upon the evidences accounts and records of third party cannot be sustained when there is no evidence on record as regards extra procur .....

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present impugned order are against the findings arrived at the Tribunal in the appellants own earlier order, which stand accepted by the Revenue. Inasmuch as the same set of investigations and the evidences collected by the Revenue have been held to be not sufficient to uphold the charge of clandestine removal, the demand in the present case cannot be sustained, based upon the same set of evidences collected during the investigation period. 40.1 Further the Tribunal in the case of Mohan Steels v .....

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the case of NU Trend Business Machine Pvt Ltd vs. Commissioner of Central Excise Chennai, 2002 (141) ELT 119 [Tribunal Chennai]. It was held that the demand based on the statements of persons who have not turned up for cross examination, is unsustainable. Such inculpatory statements lose their evidentially value when the same are not corroborated by Revenue. To the same effect is another decision of the Tribunal in the case of Rawalwasia Ispat Udyog Ltd. 2005 (186) ELT 465 [Tribunal Delhi], layi .....

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se of all such major raw materials. Such charges of clandestine activities cannot be upheld on the basis of assumptions and presumptions. The list of such decisions is never ending and though the appellant have relied on most of them, we do not find it practical to deal with or to refer to all such decisions. Suffice it to say that though the allegations and findings of clandestine activities are to be decided based upon the evidences available in a particular case, which may vary from case to c .....

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of the appellant nor undertook any exercise to find out the correctness of the said plea raised by the assessee. Tribunal in the case of Jindal Nical and alloyance Ltd. Final Order No. 904-908/2011-Ex[DB] dated 11.10.2011as also in the case of Shri Nathji Industries Pvt. Ltd. Vs. Commissioner of Central Excise Surat 2011 (267) ELT 241 [Tribunal Ahmadabad] as also in the case of Galaxy Indo Feb Ltd vs Commissioner of Central Excise Lucknow 2010, (258) ELT, 254 (Tribunal Delhi) has observed that .....

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sting which stands upheld by the Honble Allahabad High Court as also by the Honble Supreme Court and observed that the documentary evidences, even if recovered from the appellants premises, cannot be made the sole basis for confirmation of demand on the clandestine activities and the same are required to be substantiated in material particulars by independent evidences and not on the basis of assumptions and presumptions. The Honble Delhi High Court in the case of Commissioner of Income Tax vs D .....

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iled to discharge its burden, so as to come to a finding of clandestine removal. We, accordingly, are of the view that the impugned orders are required to be set aside and appeals allowed. 45. Having independently come to the above finding, we also, at this stage take note of the notesheet orders on the file, which stands produced before us. For better appreciation of the same, we like to reproduce the relevant notesheets observations made by the ADG on 18.10.1999. Your reply dated 16.9.99 on my .....

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the most recent one, there are some very obvious incongruities in the entire investigation. From the overall reading of all the representations read in the light of statement of facts, there definitely appears to be certain amount of overzealousness in hurriedly concluding investigations which are helpful to some whilst being prejudicial to the interest of some others. The points that have been raised in the representations dated 29th September are intriguing and need to be investigated personal .....

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Sagarbrand is all that is on record. b) Mandal Enterprises Calcutta: No statement has been recorded from one Shri Alok Kumar nor from Fatehpur Assam Roading and Pragati Transport. c) M/s Vijaya Agencies Wrangal: Shri Rajat Mishra and Shri Dinesh Mishra have appeared to play a big role in executing deals at Warangal but no statement has been obtained from them which could corroborate the statements given by the owners of M/s Vijaya agencies. Furthermore, it appears that they have been making pay .....

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attempt to evade duty. This appears to have been brought out even in the note sheet of the DD at page 10/ns. Shri Surendra Kumar Saxena and Shri Jagdish Kumar alias Ashok Kumar employee of Shri Kapil Dhawan stated that the two accounts were operated and opened at the behest of Shri Kapil Dhawan. Investigations need to be made from the banks as to who had issued the drafts in their favour. It was also to be important to find out whether all the drafts issued were in the name of Shri Surinder Kum .....

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ing expert. There would be some difficulty in sustaining such a piece of investigation, as firstly, the examination of documents should be confined to original documents and that too by the Examiner of Questioned documents a Govt. body the office of which I understand is located in Simla. Giving handwriting opinion on the basis of a photocopy would hardly be sustainable. Furthermore, it is not clear whether the person who had originally written the documents had been contacted and his statement .....

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t is clear that the ADG is referring to various lacunas/ loop holes in the investigation proceedings and is himself expressing doubt about the admissibility of the evidences produced by them. This shows the Revenues themselves were not sure of the success of their case. Tribunal in the case of Tejwal Dystuff Industries Pvt. Ltd vs. Commissioner of Central Excise Ahmadabad, while deciding the issue, as a third member by the then Honble President of the Tribunal has observed in Para 4 as under: It .....

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ed by preparing affidavits soon after they are made and which affidavits are again strategically withheld from the Revenue Officers, so that they become complacent and do not carry out a fuller victim to this type of strategic confessional statements which have been retracted soon after they were made in the affidavits which were withheld by the deponents till the proceedings came up before the Commissioner, by which time the damage of not making fuller investigation, thinking that the confessio .....

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