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TMI Blog2019 (5) TMI 1789X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Noida. 2. Brief facts of the case are that appellants were engaged in the manufacture of 'Chewing Tobacco' and 'Quiwam' falling under Chapter 24 of Schedule to Central Excise Tariff Act, 1985 with brand names 'Ratna Chhap', 'Pratibha', 'Prabhat 310' and 'Rajratan'. They were registered with the Central Excise Department. On 11.10.2007 officers of DGCEI conducted simultaneous searches at 20 premises including manufacturing units, sales office, residential premises of directors, offices of transporters etc. During the course of search nothing incrementing was found from any of the premises that were searched and the stock of raw material tallied with the records and no discrepancies was found in finished goods and no cash was seized from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the appellant. Therefore, through the said show cause notice a demand of Central Excise duty of Rs. 3,48,44,815/- was raised. On contest through the impugned order demand of Central Excise duty of Rs. 3,16,44,994/- was confirmed and equal penalty was imposed. Further, a demand of Central Excise duty of Rs. 31,99,818/- was dropped. Aggrieved by the confirmation of demand and imposition of penalty, appellants are before this Tribunal. 3. Heard Shri Jitendra Sing along with Shri Virendra Kumar learned Advocates on behalf of the appellant. They made following submissions:- a) The said 62 loose papers were not recovered from the appellant's premises. The said documents were brought from somewhere outside the factory premises and there re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to the factory at 11:00 AM on 11.10.2007 and after some time search operation started and till 02:00 PM officers conducted checking of records and at about 02:00 PM Shri Surendra Prasad came with the officer of DGCEI named Mr. Basu and Mr. Basu has some papers in his hand when he entered in the factory and panchanama was drawn by officers with the details of documents and that he did not know from where the said 62 papers had come and also stated that the said 62 papers were not belonging to the factory. e) Cross examination of Shri Vishnubhai Jayantilal Thakkar was held on 08.03.2010. During his cross examination, he deposed that they never purchased any goods from the appellant without bills and his statement dated 05.06.2008 was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by Shri Vishnubhai Jayantilal Thakkar the Original Authority has relied on his earlier statement dated 05.06.2008 which was retracted by him during the cross examination and the said reliance was contrary settled law. l) The Original Authority has dropped the demand of Rs. 31,99,818/- for the period from 24.08.2007 to 07.09.2007 on the basis of said loose 62 papers. However, the same evidence is applicable for the demand confirmed to the tune of around Rs. 3.16 crores for the period from 19.04.2007 to 09.08.2007 and thus two findings in the same order are contrary to each other. m) The Original Authority has also ignored the vital fact from the searched conduced at 20 premises including factory residence of directors transports, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He has reiterated the findings of the impugned order. 5. We have carefully gone through the records of the case and submissions from both the sides, we note that it is not established beyond doubt that the said 62 loose papers were recovered from the possession and control of the appellant, in view of the deposition during cross examination as stated hereinabove. It emerged through cross examination that said papers were brought from outside at around 02:00 PM. Further, said 62 pages cannot be relied upon as evidence because as per record they were recovered from the possession of Shri Surendra Prasad and statement of Shri Surendra Prasad is not admissible evidence in terms of Section 9D (1) of Central Excise Act, 1944, because Shri Sure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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