TMI Blog2018 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... s to say that these are third party documents and have to be corroborated by independent evidence. The adjudicating authority has merely presumed the entries in page 130 also to be genuine and reliable without support of any evidence to show the flow of money from M/s. KTC to appellant. Interestingly M/s. KTC is not a co-noticee to the proceedings. There is no independent evidence forthcoming to connect the appellant with the entries in page 130 of the Roker Ledger - Even though M/s. KTC who is a yarn broker might have received extra consideration or commission, there is no cogent evidence to establish that the appellant have received consideration over and above the invoice value. The material placed before us are insufficient to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law, the original authority dropped the proposal for demand of ₹ 3,56,507/- being the amount which did not represent the sale through M/s. KTC and confirmed the demand to the extent of ₹ 3,99,041/-. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. Minchu Mariam Punnoose submitted that the entire case is based on third party documents. The main document upon which the department has alleged undervaluation is the ledger maintained by M/s. KTC. It is the case of the department that in the Roker Ledger maintained by M/s. KTC the yarn cleared from appellant was shown to have sold at a higher price than that was shown in the invoice issued by the appellant. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er amount from the customers. Further, M/s. KTC was acting as a broker not only for appellant but to various other yarn manufacturers. The other evidence relied is the statement of the Director Shri R. Pari. There is nothing in the statement of the Director to show that the appellant has received any higher amount from M/s. KTC. This statement is not supported by any documentary evidence. That no incriminating documents were recovered from the premises of the appellant. The appellant cannot be saddled with liability on documents recovered from the premises of third party and not to have been groomed by any independent evidence. The appellant has not suppressed any fact and has declared the true and correct details of clearances in the ER1 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that they have received price higher than that mentioned in the Central Excise invoice while clearing the yarn and thus have evaded payment of excise duty. The main evidence relied by department is the Roker Ledger recovered from M/s. KTC and the statement of Shri R. Pari. The said Roker Ledger was maintained by M/s. KTC only. Further, the said M/s. KTC was acting as broker for several other yarn manufacturer. In this ledger M/s. KTC is said to have noted that the yarn was sold at higher price to various buyers. They have received commission from buyers. The department alleges that the yarn was sold by M/s. KTC at higher price and the same was paid to appellant. The Roker Ledger which is a third party document shows only receipt of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, I find no force in the contention of the appellant. Therefore, I discard the same as devoid of any merit. 6. The finding of the adjudicating authority has been blanketly accepted by the first appellate authority to uphold the demand. It is clear from the discussion in para 29 of the order in original that the adjudicating authority has merely presumed the entries in page 130 also to be genuine and reliable without support of any evidence to show the flow of money from M/s. KTC to appellant. Interestingly M/s. KTC is not a co-noticee to the proceedings. There is no independent evidence forthcoming to connect the appellant with the entries in page 130 of the Roker Ledger. Again, the statement of the Director has been relied by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards procurement of such huge raw materials neither source of the same has been identified by Revenue. Similarly, we find that the Revenue has not bothered to record the statements of the workers of the appellant, who are engaged in the actual manufacture and packing of the gutka/pan masala. In most of the cases, no buyers stand identified and where the buyers were identified either no inquiry was conducted with them (the cases of M/s. Santosh Tobacco and M/s. Gupta Chemical Works) or if inquiry was conducted, they have denied having received the consignments of gutka through the transporters mentioned above. As such, we are of the view that confirmation of demand of duty based upon the half written ambiguous records of the third party i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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