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TMI Blog2018 (2) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... operations in the premises of the respondent on 3.12.2004. Apart from this, they also conducted search operations in the factory premises of M/s. D.S. Metals Pvt. Ltd. (herein after referred to as DSML) situated at nearby place Gummidipoondi. The officers recovered hard discs from the computer installed in the office premises of DSML. Printouts from the computer were taken and made up to a file. Statements of the Managing Director of DSML Shri Suresh Kumar Aggarwal was recorded on various dates and statement from Shri Ashok Bhora, Director of respondent-company was recorded on 9.1.2004. Statement of Shri V. Ramalingam, Excise In-charge of DSML was also recorded. Based on the investigations, show cause notice was issued to the respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he made up file was not disputed by the respondent and therefore they ought to have been relied by the Commissioner (Appeals) to uphold the confirmation of demand. The second ground of the Commissioner (Appeals) is that when four statements were recorded from Shri Suresh Kumar Aggarwal, Managing Director of DSML, only one statement was recorded from the respondent company. It is submitted by him that the statement of Ashok Bohora was recorded showing the documents seized from the respondent company and also from the premises of DSML. The Director having admitted the offence and voluntarily paid major portion of the duty involved, no new fact emerged to obtain further statements from the Director of the respondent company. When there are suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-rolled products from respondent vide mahazar draw on 3.12.2004, the entries in these documents were matched and corroborated for accounted clearance and unaccounted clearances. The first appellate authority has failed to see that demand was not merely based on statements but based on documentary evidence fully corroborated and admitted by the respondent company. That the demand has been set aside without appreciating the facts fully. The observation of the Commissioner (Appeals) that the corroboration of documents of the supplier / computer printouts with other documents of the supplier pocket diary would not incriminate the respondent who is not a party to the documents is not proper or legal. The said documents have been corroborated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat though it is alleged that documents incriminating the correspondences were recovered from the premises of DSML, the said company has not been made a party or co-noticee in the proceedings. The respondent thereby has been deprived of a chance to cross-examine them. Further, the documents recovered from the premises of DSML are third party documents and cannot be relied against the respondent. The ld. counsel submitted that these statements were recorded from Shri Suresh Kumar Aggarwal, Managing Director of DSML on 3.12.2004, 6.12.2004, 30.12.2004, 30.10.2006, 5.9.2007 and 7.9.2007. It is understood that he has retracted his statements. However, show cause notice has not been issued to DSML as they would have replied furnishing correct fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose sheets recovered from the respondent factory and hard disc recovered from the computer installed in the premises of DSML. According to department, the Director of respondent company Shri Ashok Bohra has identified the handwriting of the loose sheets is that of Christopher. But the department thereafter has not chosen to record any statement of Christopher. No reason is seen stated for not recording his statement. The Commissioner (Appeals) has therefore observed that the said documents can be relied only with caution when the statement of author has not been recorded by the department. The allegation is that unaccounted raw materials, i.e. MS ingots were received by the respondent from DSML. However, no documents have been unearthed fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly observed that those documents cannot be relied being third party document and having no correlation with the accounts of the respondent. It is also seen that the department has alleged clandestine remove of 465.390 MTs of CTD / TMT bars. For such manufacture, it is alleged that the respondent received 334.535 MT plus 105.995 MTs of MS ingots. The respondents have submitted that they could not have manufactured 465 MTs of finished products from such quantity of raw materials during the period. 7. From the above discussions, we find that the Commissioner (Appeals) has rightly appreciated the facts and evidence in the case to set aside the demand / interest, penalties. We find no infirmity in the order passed by Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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