TMI Blog2018 (4) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority, have retracted their original statements and submitted that these statements were recorded under duress - the main evidence relied by the Department in the form of documentary as well as oral, are in jeopardy. The recovery of cash as well as the documentary evidence in the form of note books was made from the residence of Rajesh Kumar Gupta, Proprietor but the authenticity of the panchnama proceedings have been seriously questioned by the appellant - During the cross examination of the second panch witness, Shri L. N. Gupta, he submitted that he was not present at the residence of the proprietor during the period 7 am to 16:30 Hrs when the proceedings were already over and he was asked to sign the panchnama. These fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er wire, without payment of excise duty. Search operations were conducted on 01/08/2011 at the two factory premises Unit-1 and Unit-2, as well as residential premises of Shri Rajesh Kumar Gupta, Proprietor, Hind Metal Industries. In both the units, activity of wire drawing was found to be taking place. The raw material of copper wire rod of gauge 8 as well as finished copper wire of gauge 16 was found. Search operations were undertaken, the stock of finished goods as well as raw materials were seized. Two note books with certain incriminating evidence as well as total cash amounting to ₹ 1.05 Cr (out of which ₹ 25 Lakhs was allegedly recovered from the second floor of residence). During investigation, statements were recorded fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. ii. During the course of adjudication, the adjudicating authority permitted the cross examination of four witnesses-two panch witnesses as well as the two workers whose statements were relied by the Department. Both the workers retracted their original statements and deposed that these were recorded under duress. One of the panch witnesses, Shri Santosh Kumar was not produced for cross examination. The other panch witness, Shri L.N. Gupta stated that he was not present during the course of the panchnama proceedings and did not know about the seizure of cash of ₹ 25 Lakhs from the residence. In view of the above, the Ld. Advocate submitted that all the main evidences based on which the Department has made its case losses its eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /08/2011 was without any basis and has been rejected by the Department vide letter dated 30/08/2011. ii. The two workers had also admitted to the manufacture in the two factories. The retraction of these statements during the cross examination should not be taken note of since the same has been done after a long gap of six years. iii. He also submitted that the consumption of electricity in the appellant s premises proved the clandestine manufacture of copper wire. iv. The Department has also recorded the statement of Alok Aggarwal of Yash Industries and Rajesh Khandelwal of Shiv Shakti Metals. Both these persons have confirmed that they sold raw material, copper rod to the appellant. v. He prayed that the demand may be upheld. 5. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two second hand wire drawing machines. The invoices for procurement of these machines as well as the affidavit filed by the seller lead us to believe that such machines have been purchased only on 20th and 22nd July, 2011 which was only a week prior to the date of search. Such evidence has been simply brushed aside by the Adjudicating Authority who has rejected the plea of alibi. 9. The recovery of cash as well as the documentary evidence in the form of note books was made from the residence of Rajesh Kumar Gupta, Proprietor but the authenticity of the panchnama proceedings have been seriously questioned by the appellant. The cross examination of both the panch witnesses was requested by the appellant. One of the witnesses, Shri Santosh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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