TMI Blog2018 (12) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... accounted receipt of any raw material /packing material in the appellant’s factory required for clandestine manufacture & sale of Gutkha could be brought to light except the recovery of certain documents from the office of Raj Group of companies in Thane allegedly showing procurement of raw materials. Even these evidences recovered from one Mr. Suresh B. Jajra, during corss-examination were revealed to be pertaining to M/s. Royal Marwad, Ahmedabad and Meenakshi Foods Pvt. Ltd. other franchisees engaged in the manufacture of Goa 1000 Gutkha. Revenue have not corroborated its allegations with sufficient reliable evidence - the allegations in the show cause notice are based more on assumptions and presumptions, having no legs to stand - appeal allowed - decided in favor of appellant. - Excise Appeals Nos.51819, 51960-51965/17, 50004-50005, 50021/2018 - Final Orders Nos.53456-53465/2018 - Dated:- 21-12-2018 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Ajay Singh, Shri S.P. Mathew, Shri Makrand Joshi And Shri G. Vidhyadhan, Advocates for the appellants. Shri R.K. Mishra, DR for the respondent. ORDER PER ANIL CHOUDHARY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Bombay Andhra Transport Company having office at Ahmedabad, which transported the goods from Jodhpur to Bhiwandi, where delivered from the go down of GM carriers. 4. Statement of J.G. Shaikh, an Assistant with GM carriers was recorded on 18th Feb., 2008 wherein he stated that Goa 1000 Gutkha was transported by Gujarat Marathawada Transport Services (GMTS), which was their Associate company and the entries made by him in notebook pertaining to transportation of Goa 1000 Gutkha was from Jodhpur to Bhiwandi via Ahemdabad by GMTS. During the course of investigation one Mr Arun Joshi, Chairman of Raj Group of companies was arrested and was compelled to deposit an amount of ₹ 3 crores towards the duty liability to secure bail. After completion of investigation show cause notice dated 9th May 2011 was issued demanding duty along with penalty and also penalty was proposed on others mainly on the basis of records seized from the go down premises of GM Carriers transporter at Bhiwandi near Mumbai oral testimony of Mr Javed G. Shaikh, an employee with GM carriers. Statement of several other persons was also referred to and relied upon in the show cause notice. The SCN wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ld. Commissioner in the context of non-production of original seized documents for inspection by the appellant s advocate are annexed in the appeal paper book. 7. As the key witness Mr. Javed Gamir Shaikh was not produced for cross-examination, appellant also requested for the examination of the officer who recorded the statement (on the day of search) during investigation. Though cross- examination of the said officer was allowed by the Adjudicating Authority and the witness was examined, the memo of cross-examination was never provided to the Appellant, preventing them from relying on the said evidence of cross-examination. In the correspondence with the ld. Adjudicating Authority, the Appellant s Advocate requested for furnishing a copy of the record of cross-examination of the Investigating Officer, however, the same was not provided to the Appellant, and the request letters are part of the appeal paper book. 8. During the course of adjudication proceedings Appellants filed interim reply dated 01.06.2015. Further, Appellants also requested to provide inspection /copies of some of the relied upon documents which were never provided to the Appellants. Request for cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t except the recovery of certain documents from the office of Raj Group of companies in Thane allegedly showing procurement of raw materials. Even these evidences recovered from one Mr. Suresh B. Jajra, during corss-examination were revealed to be pertaining to M/s. Royal Marwad, Ahmedabad and Meenakshi Foods Pvt. Ltd. other franchisees engaged in the manufacture of Goa 1000 Gutkha. 13. Though the S.C. Notice relies on documents seized from the premises of Raj Group of Companies and also statement of Mr. Suresh Jajra to substantiate the allegation of unaccounted procurement of raw material, however none of these evidences point to any specific instance of unaccounted procurement of raw material for the appellant s factory at Jodhpur. The statement of Mr. Jajra was retracted and the said witness during cross-examination has categorically clarified that the documents listed at Sr.No.1 of Annexure-A are pertaining to the activities of M/s.Royal Marwar Tobacco Products, Gandhinagar, Gujarat, which were purchased by his company, Meenakshi Food Products. Despite the aforesaid clarification in his cross-examination the ld. Commissioner blindly relied o his statement recorded under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant s factory at Jodhpur. The said witness had no connection with the transportation from Jodhpur/Ahmedabad to Bhiwandi and not at all concerned with the Appellant s factory at Jodhpur. Cross examination of this witness to elicit as to how he derived the inference of clandestine dispatch of Gutkha from Appellant factory did not materialize as the department did not produce this witness. During cross-examination, employer of this witness and the transporter who transported the goods disowned the said note book and entries made therein. 19. The documents viz. invoices/LR/Truck Report, recovered from the godown premises revealed that in case of Gutkha cleared by the appellant, the LR was prepared byM/s.KGN Transport at Jodhpur and whereas in case of other goods, which are alleged to be Gutkha cleared from the Appellant factory, without invoices, the LR‟s were prepared at Ahmedabad and the handwriting of the person preparing the truck report at Piplej (Ahmedabad) is same as those appearing on the impugned LR‟s prepared at Ahmedabad and therefore the allegation that these goods had any relationship with the Appellant s factory cannot be upheld. In the worst, the LR s/tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confessed that the total amount shown at the bottom of the page should be read without decimal point. He further referred to the statement of Shri B. S. Purohit, Manager (Accounts) of Raj Group of Companies, who stated that M/s. Arun N. Joshi Consutany was a Consultancy firm and gave advice in respect of blending of perfumes and essential oils. 25. Ld. AR further stated that in search at factory on 18.02.2008 at Jodhpur, stock verification in respect of items like perfumery compound, kimam and methol was conducted and it was found that 21.895 kg. of perfumes and 10.36 kgs. of glycerine were in excess whereas there was shortage of menthol of 38.087 kgs. and kimam of 34.045 kgs. One Mr. Manoj Kumar Sen, Share Holder of Raj Pan Masala disposed that raw materials purchase was looked after by Shri Dinesh Sen and Shri Kailash Joshi and that the raw materials, which were received, were not always accompanied by the bills and was only accompanied by chits, which were destroyed after receipt of the raw materials. Sometimes, perfumery compound was also received from Sachin Perfumery Works, Silwasa, with bill or without bill, both. 26. Ld. AR further points out that in the search at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shaikh was allowed, but copy of the cross-examination recorded by the Adjudicating Authority was not given to the appellant, in spite of specific written requests. This led to prejudice. 27.4 Examination of the original RUD‟s was never provided, prejudicing the opportunity to defend. 27.5 No evidence of clandestine manufacture and removal of gutkha (finished product) is available, nor found. The transporter of the appellant M/s. KGN Transport was not investigated. Variation in the recorded stock as compared to the raw materials in physical verification is negligible. No evidence of unaccounted removal of finished goods was found. 27.6 Documents of raw materials acquisition recovered from Suresh B. Jajra were related to or pertaining to M/s. Royal Marwad, Ahmedabad, Meenakshi Foods(P) Ltd. Ors., nowhere related to the appellant. The initial statement of Suresh B. Jajra, specifying the name of appellant company was retracted during cross-examination, and also within few days of recording. 27.7 That the investigation could not trace any buyer of alleged clandestinely removed goods, nor the flow of money. No unaccounted cash was found. 27.8 In spite of other ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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