TMI Blog2019 (5) TMI 1789X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Surendra Prasad was not cross examined. The evidence which was relied upon for dropping of the demand of around ₹ 31,99,818/- was the evidence relied upon for confirmation of demand of ₹ 3.16 crores and thus there is contradiction in the impugned order - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 2572 of 2010-[Division Bench] - FINAL ORDER NO.- 71133/2019 - Dated:- 16-5-2019 - HON BLE SMT. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils of the delivery challans in respect of purchase of tobacco from page no.1 to 17 and contents of page no.18 to 40 was details of production of goods in tin and pouches and page no.41 to 62 was having figures of expenditure details. Statement of Shri Ujjwal Arya, partner was recorded on 04.12.2007, 05.12.2007 and 05.02.2008 who admitted that Shri Surendra Prasad was production supervisor. Statement of Shri Gopal Prasad Chaurasia, Accountant was recorded on 03.04.2008 who stated that production activities were supervised by Shri Surendra Prasad. Further, investigations were carried out at dealers end. Shri Vishnubhai Jayantilal Thakkar, Authorized Signatory of M/s Thakkar Jayantilal Daya Bhai one of the dealers admitted in his statement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not indicate the place of recovery of said papers such as a room, Almirah, drawer of the table, pocket of the victim, vehicle, brief case or bag etc. b) The appellant had sought for cross examination of 8 persons the Original Adjudicating Authority held cross examination of only four witnesses. c) Cross examination of Mr. Pratham Singh, Panch witness was held on 23.02.2010. Shri Pratham Singh deposed that the panchnama proceedings did not take place in his presence as he was on the duty as guard at the factory gate and did not come inside the factory till 07:30 PM and that he come in the factory when he was called by the officers. He further deposed that he was asked to sign some documents but did not know about the details of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination, he deposed that he was at his shop till 05:00 PM when he was called to sign some documents about which he was not aware and he was not present during the proceedings of panchnama. g) Cross examination of Shri Surendra Prasad was not conducted. h) There was no recovery of any incriminating documents, goods or cash from any of 20 premises searched by the officers. There was no discrepancy in stock of raw material or finished goods. i) Original Authority has relied on the original statement of Shri Surendra Prasad and original statement of Shri Vishnubhai Jayantilal Thakkar and did not take into consideration deposition by Shri Vishnubhai Jayantilal Thakkar during the cross examination on 08.03.2010 and recorded her finding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty demand was on the basis of mere assumptions and without there being any tangible evidence relating to excess consumption of raw material, seizer of unaccounted goods, sale of goods to identified customers or cash related to clandestine removal. Therefore, the finding by Original Authority is contrary to the law pronounced by this Tribunal in the case of Arya Fibers Pvt. Ltd. Vs Commissioner of Central Excise, Ahmadabad-II reported at 2014 (311) ELT 529 (Tri.-Ahmadabad) which was relied upon by Hon ble High Court of Delhi in the case of Flevel International Vs Commissioner of Central Excise reported at 2016 (332) ELT 416 (Delhi). o) In terms of law declared by Hon ble Punjab Haryana High Court in the case of Jindal Drug Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her statement relied upon by the Original Authority is statement of Shri Vishnubhai Jayantilal Thakkar which was recorded on 05.06.2008. The said statement is also not having evidently value in view of deposition of Shri Vishnubhai Jayantilal Thakkar during his cross examination on 08.03.2010. Further, the evidence which was relied upon for dropping of the demand of around ₹ 31,99,818/- was the evidence relied upon for confirmation of demand of ₹ 3.16 crores and thus there is contradiction in the impugned order. We, therefore, hold that the impugned order is not sustainable. 6. Accordingly, we set aside the impugned order and allow the appeal. (Dictated and pronounced in open court) - - TaxTMI - TMITax - Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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