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TMI Blog2018 (5) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... llant under rule 26(1) of the Central Excise Rules, 2002 for his role in the clandestine manufacture and clearance of Gutka by main noticee Shri Kantilal B. Mohite. The penalty imposed on the appellant was equal to duty evaded by the main noticee. 2. Learned C.A for the appellant pointed out that the appellant had no role in the clandestine manufacture and clearance by the main noticee. He argued that the grounds on which the appellant has been found guilty for imposition of penalty are - (I) Mahindra jeep used for transportation of goods manufactured and cleared clandestinely by the main noticee was owned by the appellant, (II) the appellant gave money to the main noticee through Shri Javed for the purchase of D.G. Set and (III) plan of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements and subsequently during correspondence. In fact, Revenue vide letter dated 29th January 2016 refused to verify the claim made by the appellant regarding his continued possession of machines. 2.2 He further pointed out that the main noticee Shri Kantilal B. Mohite had stated in his statement that the Mahindra jeep bearing registration No. MH12 BG3268, allegedly owned by the appellant, was used for transportation of labourers working in the said premises belonging to the appellant and the same was purchase by him from Shri Suhas Khabiya six months before the case was booked. He argued that in these circumstances, it cannot be alleged that the said jeep belongs to the appellant. He argued that RTO Pune vide their letter dated 18.11.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Naresh J. Sukhawani v. Union of India - 1996 (83) ELT 258 (S.C.) to state that the statement of co-accused can be used as substantive evidence. He pointed out that for crossexamination, a letter was issued to the appellant on 9th January 2017 fixing 17th January 2017 as the date for cross-examination. However, the appellant did not use the opportunity. He further pointed out that the letter posted to the appellant came back though it was addressed at the same address as it appears in appeal memoranda as well as in the show-cause notice. 4. We have gone through the rival submissions. We find that the entire case of Revenue against the appellant is based on the assertion that the Mahindra jeep, which was used for clandestine clearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing machines to the main noticee. The allegations of supply of packing machines is based on the statement of Shri Kantilal B. Mohite, main noticee to the effect that one Shri Javed had bought money from the appellant for purchase of DG Sets and made payment to the shop keeper, and also that Shri Javed got fourteen machines for gutka packaging. We find that Revenue has not been able to locate Shri Javed. The appellant has denied knowing any person by named as Javed. In these circumstances, the statement of the main noticee to the effect that Shri Suhas S Khabia had supplied money for D.G. Set and packing machines for gutka manufacture through Shri Javed becomes hearsay statement. The appellant had relied on the following decisions to ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, we find that Revenue has failed to prove the assertion that the appellant had paid the money for purchase of D.G. Sets and supplied the packing machines. 4.5 The second ground of allegation against the appellant is that the Mahindra jeep in which the goods were cleared was owned by the appellant. The record of the transport department shows that the said jeep was transferred to the main noticee much before the alleged evasion took place and the case was booked. The stand of appellant right from the beginning of investigations and even before Hon'ble High Court has consistently been that the vehicle was sold to main noticee much before the alleged evasion took place. Moreover, there is no evidence for clandestine removal of any goods by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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