TMI Blog2024 (1) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... otice with the allegation that those registered dealer companies. Apparently, there is no search and recovery from the premises of the present appellants except that the statement of Shri Anil Goel, the appellant, was recorded. On perusal of the statement of said Shri Anil Goel, it is clear that he has outrightly denied receiving any cenvatable invoice without getting physical delivery of the goods. It is also observed that RG-23 Part I register has been placed on record by the appellants wherein all purchases of metal scrap/rods from M/s.Unanti Alloys were specifically recorded by the appellants. The department has failed to produce any document to falsify the contents of the said register. The register being documentary evidence should have precedence over the statement relied upon by the department. There has been no such recovery of document from premises of the appellant, it will not be out of place to hold that the department has proceeded based on the third party evidence to confirm the demand against the appellants. There has been catena of decisions wherein it has been held that third party evidence has no evidentiary value and that the same is not at all admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s.Progressive Alloys (India) Pvt.Ltd.,408, Azadpur Commercial Complex, Azadpur, Delhi-110033 (PAIPL) AAGCP1584MED001 4 M/s.Unanti Alloys Pvt.Ltd.,Behrampur Road, Opp.Haryana Roadways Workshop, Gurgoan (Haryana)-122001 (M/s.UAPL, Gurgaon) AABCU1531EED003 5 M/s.Unanti Alloys Pvt.Ltd, Plot No.10, Khasra No.38/15, Shiv Vihar Shahbad Daulatpur, Delhi-42 (M/s. UAPL, Jaipur) AABCU1531EED001 6 M/s.Unanti Alloys Pvt.Ltd, Shop No.17, Pradhan Nagar Muhana, Sandaner, Jaipur, (Rajasthan) (M/s. UAPL, Jaipur) AABCU1531EED004 7 M/s.Moral Alloys Pvt.Ltd., 205, Ajeet Bhawan, 4697/6, Anari Road, Daryaganj, Delhi-110002 (M/s.MAPL, Delhi) AAGC8421JED001 8 M/s.Moral Alloys Pvt.Ltd., Shivaji Park, Khandsa Road, Gurgaon,Haryana(M/s.MAPL, Gurgaon) AAGC8421JED002 9 M/s.Moral Alloys Pvt.Ltd., Plot No.1007,Road No.14, V.K.I. Area, Jaipur, Rajasthan-302013 (M/s.MAPL, Jaipur) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Being aggrieved, the appellants are before this Tribunal. 6. We have heard Shri L.B.Yadav and Shri Jitendra Singh, learned Counsels for the appellants and Shri Rakesh Agarwal, Authorised Representative for the respondent. 7. That the present case has been initiated based on the statement of Shri Amit Gupta and on the basis of documents recovered during the searches conducted in the various premises pertaining to said Amit Gupta. It is impressed upon that no search was ever conducted in the premises of M/s.Unanti Alloys Pvt.Ltd., Jaipur from whom the appellants were purchasing the copper/scrap/rods etc. There was no search conducted in the premises of the appellants also. It is submitted that the statements on which department proceeded against several manufacturers/suppliers of metal i.e. of Shri Amit Goel and Sanjeev Magoo have been retracted by both of them when they were cross examined. Shri Anil Goel one of the appellant before us, has categorically stated about receiving goods of invoices physically and to have entered the same in the RG-23A Part I Register. Hence, the goods were duly accounted for in their records even payments were made for the same through RTGS/Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as have been brought to the notice by the appellant, we observe and hold as follows: 11. The present case has originated out of the same set of investigation including searches in various premises of Amit Gupta, proprietor of M/s. Progressive Alloys, the documents recovered and the statement of Shri Sanjeev Magoo, the transporter, as were the facts in various other appeals, brought to notice by the appellants. The present appellants are alleged to have been the vendor of M/s.Unanti Alloys. The cenvat credit availed by them on the invoices received from M/s.Unanti Alloys for purchase of copper, rod scrap, etc. is alleged as inadmissible. The decision of this Tribunal in the case of M/s.Unanti Alloys vide Final Order No.50910 of 2020 dated 22.12.2021 along with various other final orders has been brought to our knowledge. Perusing those cases alongwith the present one, it is observed that Shri Amit Gupta was cross examined on 10.04.2018 wherein he retracted his statement dated 06.12.2012. He rather alleged that his statement was recorded under compulsion and coercion and answer in the statement were actually dictated by the investigating officer and not by Shri Amit Gupta himself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India reported as 2014 (309) ELT 411 (Allahabad) had earlier laid down the criteria of investigation to prove the allegation of clandestine sale in following words: Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) find out the dispatch particulars from the regular transporters. (iv) find out the realization of sale proceeds. (v) find out finished product receipt details from regular dealers/buyers. (v) To find out the excess power consumptions. 14. As already appreciated above, that there has been no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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