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TMI Blog2024 (4) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed demand of Central Excise duty of Rs. 80,17,970/- along with interest and imposed equal amount of penalty. 1.1 Briefly stated, the facts of the case are that the appellant received the information from the Director General of Income -tax (Inv), Ahmedabad vide letter dtd. 22.02.10 indicated that Shri Bhikhabhai K Patel, proprietor of Appellant firm and Shri Dineshbhai S Patel, proprietor of M/s Umiya Pump both situated at D-1/B, Diamond Park, Opp. Gujarat Agro, Naroda GIDC, NH No. 8 Ahmedabad, engaged in the business of manufacturing, trading and jobwork of submersible pumps had made sales in cash and had not disclosed the same and had not maintained any books of accounts for the purpose of Income-Tax ; and that they had disclosed addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to produce is about 175 to 190 pumps per months. Even for higher estimation, the maximum value of clearance would be less than 1.5 crores which is well within the threshold limit of SSI exemption under Notification No. 8/2023-CE. 3. He also submits that the onus to prove that the appellant had manufactured goods and cleared clandestinely rests on department. Without having provide with cogent and tangible evidence that goods had been manufactured and cleared, not duty could be demanded. Since the adjudicating authority had failed miserably in putting on records about the manufacture of goods, the demand of duty is not sustainable. Copy of collection books recovered by the Income Tax Department is not conclusive evidence. The department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y evidence, the adjudicating authority had confirmed the demand for the period January to October 2010. Even if the statements of the buyers are to be believed, most of the buyers were returning the pumps to the Appellant. The returned pumps were again cleared to some other dealers. Thus there is duplication of figures mentioned in the collection books. 7. He also argued that in order to manufacture the excisable goods it requires raw material like castings, copper rods, copper wires etc. The department has not adduced any evidence about the purchasing such raw materials. The department has demanded Central Excise Duty without going to the basics of manufacturing process and without support of any cogent and tangible evidence. Clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minum Extrusions Pvt. Ltd.-2011(274)ELT 582(T. Mum) (vi) Patran Pipes (P) Ltd. -2010 (261)ELT 1173 (Tri. Del.) (vii) RadhaMadhav Corporation -2012(284)ELT 369 (Tri.Ahmd.) (viii) Shree Laxmi Steel Rolling Mills -2008(232)ELT 695(Tri. Ahmd.) 8. Shri A.R. Kanani, Learned Superintendent Authorized Representative appearing for Revenue on the other hand has supported the findings of the impugned order. 9. Heard both the sides. We have carefully gone through the case records, the written and as well as the oral submission of the appellant and the evidence placed on records. The Revenue's case is primarily dependent upon the documents Collection Books (diary), forwarded by the Income Tax after seizure and a photocopy of seized by the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." From the plain reading of the above section 9D, it can be seen that it is not a discretion or choice of the adjudicating authority whether to allow or not to allow the examination in chief and or cross examination of witness. In the present case, since the witness have categorically denied the statement it become i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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