TMI Blog2017 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... Seema Jain, Adv For the Respondent : Sh. S.K. Bansal, DR ORDER Per V. Padmanabhan The present appeals are filed against order-in-original No.06/D-1/2017 dated 28.02.2017. This is the second round of litigation before the Tribunal. The period in dispute is 26.08.2008 to 31.11.2008. 2. Brief facts of the case are that : On the midnight of 31.10.2008 and 01.11.2008, the department searched the poultry farm at village Khera Khurd which was owned by Sh. Sandeep Mann. On search, it was found that there were four gutkha packing machines which were in working condition and one machine was lying idle. Packing material and finished products under the brand name of Kanchan were also recovered. However, it is claimed that raw material was not manufactured there but the same was brought readymade by the assessee-Appellants. The Department, on the basis of the statements of the concerned persons, made out a case of clandestine removal against the Appellants and levied penalties on the concerned persons. 3. Being aggrieved, the appellants filed Writ Petition No. 1738/2012 as well as Writ Petition No. 2851/2014 before the Hon ble High Court. At the instance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rent to Sh. Manoj Tripathi who was responsible for managing the machines and factory. Statement of Sh. Manoj Tripathi was recorded as discussed in para 23 of the impugned order where he stated that he took the premises on rent but the agreement was signed by Sh. Om Prakash Dubey. He submitted that he has signed the paper for Sh. Om Prakash Dubey. Sh. Sandeep Mann, owner of the premises in his preliminary statement, has stated that M/s Kuber Tobacco India is the manufacturer of Kanchan brand gutkha with the help of five machines but later, he retracted his statement. 7. Ms. Seema Jain, Ld. Advocate submitted that, Sh. Dhanpat Singhee is Director in M/s Kuber Tobacco India. His statement was recorded on 01.11.2008 where he has admitted the supply of ready made raw material mix. In the original statement, he stated that he was only sending raw material to Sh. Sandeep Mann but he has retracted from his statement immediately on next day i.e. 02.11.2009. On 29.10.2010, he again denied his earlier statement during the course of cross-examination. Later, he was not summoned. 8. It is the submission of the ld. Counsel that none of Sh. O.P. Dubey; Sh. Manoj Tripathi and Sh. Sandeep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 06.11.2008 Sh. Sandeep Mann, owner of the Farm House, has lodged a FIR, after the search where it was stated that illegal manufacture of pan masala/gutkha has been done in his premises. He also submits that Sh. Om Prakash Dubey (in para 19 of the impugned order) admitted that three cheques of ₹ 10 lakhs each were given by Sh. Chattar Singh Baid which were deposited in the Government exchequer towards the payment of duty. He also submits that Sh. Om Prakash Dubey is not in a position to generate the fund. His credit worthiness is not good. Sh. Baid is related to Sh. M.C. Malu (brother of Sh. Vikas Malu). 13. Ld.DR further submits that Sh. Vikas Malu, in his statement dated 17.03.2009, stated that he is the owner of the factory and he is ready to discharge duty liability for the factory at Khera Khurd i.e. Sandeep Poultry Farm, but the same was retracted. Lastly, he justified the impugned order. 14. After hearing both the parties at length and on perusal of record, it appears that all the statements which were recorded, were later retracted by the concerned persons. For example, the statement of Sh. Dhanpat Singhee dated 01.11.2008 was retracted on the very next day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not mentioned any relationship between the appellant and factory at the poultry farm. Statement of Shri Chatter Singh Baid was recorded on 06.01.2009 wherein he has clearly stated that he had no relation with Kuber (assessee-Appellants). Statement of Shri Vikas Malu was recorded oon 17.03.2009 and 19.03.2009 wherein he admitted that he was owner of Kuber (assessee-Appellants) and ready to discharge duty, but it is alleged that statements were recorded under duress during transit remand which was retracted on 20.03.2009 from jail. 18. Statement of Shri Om Prakash Dubey was recorded on 18.12.2008 wherein it was stated that the seized machines were installed on the direction of Shri Chatter Singh Baid and Shri Vikas Malu, but in his another statement dated 02.12.2008, he claimed that he was manufacturer and ready to pay the duty. Shri Om Prakash Dubey is not the employee of the assessee-Appellants. The father s name of Shri Om Prakash Dubey is different in the attendance register. Similarly, Shri Manoj Tripathi is not the employee of the assessee-Appellants and, therefore, it is claimed that rent agreement cannot be said to be at their instance. Shri Manoj Tripathi gave the cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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