TMI Blog2016 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices, there was no mention the contents of yarn. In this case the original invoice is the main evidence to reveal the truth but the statement made by the witness during the cross examination that the original invoices does not have mention of the description of the goods which has not been considered by the adjudicating authority, therefore, the evidence in form of photocopy of invoice is not acceptable. Moreover on photocopies of the invoices, the witness was forced to write in his handwriting as per the wishes of the departmental officers. This issue has neither been denied by the Revenue nor raised in the appeal before us which is a crucial evidence to decide the case. No demand - Decided against the revenue. - E/622-626 and 2250/2007-EX(DB) - Final Order No. 60184-60189/2016 - Dated:- 17-5-2016 - Mr. Ashok Jindal, Member and Mr. Raju, Member (Technical) Shri Sanjay Jain, AR- for the appellant Shri Jagmohan Bansal Naveen Bindal, Advocate- for the respondent ORDER The Revenue is in appeal against the impugned order. As all these appeals are arising out of a common order, therefore all the appeals are disposed of by this common order. 2. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under threat/duress. Therefore, it was submitted that in the case of Paulraj-2001 (137) 03 (Madras), the Hon'ble Madras High Court has held that retraction made after 45 days of recoding of statement does not in any way affect the credibility of the confessional statement made by the accused and the statement is voluntary in nature. No explanation given by the accused except bare denial. No proof of any torture or coercion is available. Learned AR relied on the decision of Apex Court in the case of Kalema Tumba vs. State of Maharashtra-2001 (115) ELT 8 (SC). 4. On the other hand, leaned Counsel, Shri Jagmohan Bansal appeared on behalf of the respondents submitted that the suppliers or witness made the statement during the course of investigation and later in cross examination, the truth was revealed and the initial statement were not recorded before the respondents. He further submitted that the respondents have never admitted that they were dyeing polyester dominated fabrics. The respondents have cross examined the persons whose statement have been relied on by the authorities while issuing the show cause notices and cross examination was granted. In the cross examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompelled by the officers to write in his handwriting the contents of yarn on photocopies of the invoices. Even at the time of cross examination, in the original copies of the invoices, there was no mention the contents of yarn. 8. We further find that the Commissioner (Appeals) has appreciated this fact and observed as under: As per facts on record, the departmental officers visited the office-cum-factory premises of the appellants no. 1 and resumed their records. After scrutiny of the records, the department conducted enquiries against various suppliers of the appellants no. 1 and as result of such enquiries it was concluded that during the material period the appellants no. 3 4 had sent polyester dominated fabrics to the appellants no. 1 for dyeing and not cotton dominated fabrics as mentioned by the appellants no. 1 on the invoices while returning the same after dyeing. The purchase records of the appellants no.3 4 were scrutinised and their statements were recorded incorporating therein the details of types of yarns purchased by the appellants no. 3 4, and types of fabric manufactured and supplied to the appellants no. 1 for dyeing during the material period It ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng appellants no. 3 4. If has also been mentioned that the records of the appellants 3 4 was scrutinized by the investigators. In such cases, it is imperative that documents such as invoices/challans, transport records receipt records should have been brought on record as documentary evidence in support of the allegations to show that the goods supplied to the appellants no. 1 were in fact polyester dominated fabrics, whereas the department has not given any details regarding the contents of the resumed records and what was observed on scrutiny of such records, The findings of the adjudicating authority that polyester dominated yarn was got dyed from the appellants no. 1 during the material period, is based only on the statements brought on record by the department. It is evident that the said appellants no. 4 disowned their original statements on which reliance has been placed by the department. Further, the appellants no. 3 also contented during the instant proceedings that they purchased cotton dominated yarn and that they have paid charges of cotton dyeing to the appellants no. 2. As per facts on record, there is no documentary or corroborative evidence to support the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the appellant no. 2 to corroborate the allegations of the department. The Adjudicating has discussed the contents of the statement of the appellants no. 2 to draw conclusion that duty was paid on the said goods as per the description given on the challans and not by the composition of actual goods received by the appellants no. 1. This conclusions is not sustainable when the appellants no. 3 4 have categorically denied to have sent fabrics other than cotton dominated fabrics for dyeing as alleged by the department and the appellants no. 4 have also produced the documents in support of their claim during the course of cross examination in the adjudication proceedings. When the facts on records do not prove that the fabrics sent for dyeing by the appellants no. 3 4 was polyester dominated, the allegation of the department that the appeals no. 1 has mis-declared the said fabric as cotton dominated is not maintainable. From the above, it is evident that adjudicating authority overlooked the fact that the contents of the statements on which the whole case is based, lacks corroboration by any documentary evidence. Further, it is conspicuous that the said statements 3 4 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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