TMI Blog2022 (11) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to be cross-examined by the appellant and that Shri Sanjeev Maggu had retracted the statements which had been relied upon by the Original Adjudicating Authority - there are no infirmity in the order of Commissioner (Appeals) while denying the admissibility of these statements. The departmental investigating agencies as well as the Adjudicating Authorities have not yet started observing compliance of mandatory statutory provisions i.e. section 9D of Central Excise Act, 1944 and section 138 B of Customs Act, 1962 without which the statement recorded at the stage of inquiry / investigation will not be relevant for the purpose of proving the truth of requisite facts during prosecution. It is therefore desired that department may come with certain guidelines so that the efforts of investigating team may not be discarded for the reason of non-compliance of aforesaid provisions. Appeal of Revenue dismissed. - EXCISE APPEAL NO. 50645 OF 2019 - FINAL ORDER No. 51098/2022 - Dated:- 22-11-2022 - MR. P. VENKATA SUBBA RAO, MEMBER(TECHNICAL) AND DR. RACHNA GUPTA, MEMBER(JUDICIAL) Shri Sanjay Kumar Singh, Authorised Representative for the Revenue Shri Vijay Kumar, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s Mittal Pigments Pvt. Ltd., A- f 203, Indraprastha Industrial Area, Road No.5, Kota (Raj.), one of the manufacturers, were visited by the Officers of Anti Evasion Branch Central Excise Commissionerate. Searches were also conducted carried out by the DGCEI on 06.12.2012 at various places including following premises as detailed below:- (i) Secret Office of Shri Amit Gupta, situated at A-17, First Floor, Rajan Babu Road, Near Bank of Baroda ATM, Adarsh Nagar, Delhi- 110033, was searched under panchanama dated 06.12.2012 and Indian currency of Rs. 82,00,000/- was seized from the said premises. (ii) Undeclared godown premises of Shri Amit Gupta, situated at 5787, 5792, 5795 Basti Harphool Singh, Sadar Thana Road, Sadar Bazar, Delhi was searched under panchanama dated 06.12.2012 and Indian currency of Rs.23,00,000/- was seized. 6. Thereafter the statements of all concerned were recorded, Statements of Shri Amit Gupta, his brother Mohit Gupta were recorded on 6.12.2012 itself. Based on these statements the statement of Shri Sher Singh, Accountant of M/s. Leo Roadlines Pvt. Ltd. was recorded on 11.12.2012. Statement of proprietor of said transporter namely Shri Sanjeev Maggu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansporter dealers with intention of passing of such Cenvat credit fraudulently without actual transportation of the goods with said invoices. The books of accounts were observed to have mis-statement about the facts of receiving goods against the said invoices. It is further impressed upon that Commissioner (Appeals) has miserably failed to consider the admission of Shri Amit Gupta, incriminating documents recovered from the premises of the respondent-assessee and the denial of transporter for transporting any goods from Shri Amit Gupta and his company as mentioned above, to various manufacturer including M/s. Mittal Pigments Pvt Ltd. The order of Commissioner (Appeals) is therefore, liable to be set aside. The appeal is accordingly prayed to be allowed. 9. Per contra learned Counsel for the respondent-assessee has mentioned that the Original Adjudicating Authority has failed to consider the relevant documents of the respondent-assessee which have duly been considered by the Commissioner (Appeals) and have been discussed in detail in the order under challenge. Based upon those documents, i.e. copy of invoices raised by the supplier, vehicle details as were downloaded from the we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cable Corporation of India, Sudershan Chemical Industries Limited, KEI Industries Limited,, Balkrishna Industries Ltd., and needed standard raw material for manufacture and supply of goods. The allegation that appellant was procuring the raw materials from the open market on cash basis, is not sustainable for the reason that the appellant has to maintain higher standard of quality to make major supplies either for export or to the companies which are operating in atomic energy, power, defence, oil refining etc. In the instant case, no physical verification of stock was done. No shortage of physical stock was identified. 5.6 Regarding the allegation that payment was made through banking channel and was received back in cash is not sustainable for the reason that no cash was seized from the appellants premises. 12. Commissioner (Appeals) has also appreciated that M/s. Mittal Pigments Pvt Ltd. were not afforded the opportunity to cross-examine Shri Amit Gupta. We are also of the opinion that in the findings of Original Adjudicating Authority much emphasis has been led on the statements recorded during investigation mainly on the statement of Shri Amit Gupta. But we observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement has to be regarded as the said statement would not be relevant for proving the truth of the contents thereof. Hon ble Supreme Court also in the case of C.C. vs. Bussa Overseas Properties Ltd. reported in [2007 (216) ELT 659 (S.C.)] has held that the Adjudicating Authorities are bound by the general principles of evidence. Since Commissioner (Appeals) has placed extensive reliance on the statements recorded during investigation without invoking speaking section (1) of Section 9 D of Central Excise Act, the findings of confirmation of duty demand due to alleged clandestine removal are therefore liable to be set aside. 15. In view thereof, we hold that any findings solely based upon the statements cannot be confirmed against M/s. Mittal Pigments Pvt Ltd. unless those statements have stood the test of Section 9(D) of Central Excise Act. Apparently and admittedly Shri Amit Gupta was not examined by the Adjudicating Authority. More so, for the reason that Shri Amit Gupta was not even allowed to be cross-examined by the appellant and that Shri Sanjeev Maggu had retracted the statements which had been relied upon by the Original Adjudicating Authority. In view of these observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not seize in the year 2006 are still continue. Shri Sher Singh who deposed it to seize after 2006 is denied to be the employee of M/s. Leo Trans Logistics. In the light of the above discussed cross-examination of Shri Amit Gupta ad Shri Sanjeev Maggu, the earlier statements of Amit Gupta dated 06.12.2012 and that of Shri Sanjeev Maggu of 06.09.2013 become redundant. From the order under challenge, it is abundantly clear that except relying upon these statements and presuming the corroboration from the statement of other persons no other evidence has been discussed by Commissioner (Appeals). He rather has wrongly recorded in para 18.1 of the order under challenge that from the cross-examination of the statements of Shri Amit Gupta and Shri Sanjeev Maggu no retraction at all is apparent. This particular observation is sufficient to set aside the order which is solely relying the statements of Examination in Chief of said Amit Gupta and said Sanjeev Maggu. 12. I further observe that on same investigation several cases have already been adjudicated by this Tribunal. In M/s. Arya Alloy Pvt. Ltd. (supra) it has been held that there is no evidence on record except the statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 15. In view of the totality of above discussion, the findings in the order under challenge are held to be nothing but presumptive. There is observed absolute ignorance of the statement in cross-examination of alleged kin-pin Shri Amit Gupta and the transporter Shri Sanjeev Maggu. There is no other relevant evidence to prove the Departments case. Rather there is statement of Shri D.P. Sharma, Senior Manager of M/s. Aggarwal Metals Pvt. Ltd. as was reorded on 24.05.2017 which is relevant w.r.t. the impugned three invoices of M/s. V.K. Enterprises. He specifically deposed that M/s. Agrawal Metals used to purchase copper scrap from V.K. Enterprises against the payments either by RTGS or by Cheques. He has outrighly denied the invoices to be 14 E / 50764, 50765, 50885, 50886 50910/2020 [SM] mere cenvatable without delivery of goods. He also denied receiving any cash from M/s.V.K. Enterprises of the amount sent by them through RTGS/Cheque. This deposition clearly falsifies the presumptive alleged modus-operandis. 17. Similar are the findings in various decisions as relied upon by the Counsel for M/s. Mittal Pigments Pvt Ltd. These decisions were also based upon same search da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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