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TMI Blog2015 (10) TMI 2354X X X X Extracts X X X X X X X X Extracts X X X X ..... rity has wrongly allowed the appeal of the main appellant partly when confessional statements clearly establish Revenues case and also that penalties were wrongly reduced by the first appellate authority. Revenues appeal, therefore seeks restoration of the order passed by the Adjudicating authority. 2. Shri Willingdon C (Advocate) appearing on behalf of the main appellant and others argued that a case was booked against his clients regarding clandestine manufacture and clearance of Copper Strips, Wire Rods, Brass etc. That Revenue has made the case on the basis of 62 reconstructed copies of delivery challans-cum-profoma invoices which were made available to the investigation by some unidentified and undisclosed informer. That statement of his clients and 3 employees of the main appellant were also recorded to corroborate the case. That simultaneous search were carried out at the factory premises of the main appellant, trading shop/depot of the main appellant at Surat and Thane, 11 buyers premises at different cities and the concerned, transporters. That during the search operations no discrepancy of raw materials or finished goods was found to exist in the physical stock/record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parag India Ltd vs CCE [2013(291)ELT.81(T)] b) CCE vs Welcome Drugs & Pharmaceuticals Ltd [2014(303)ELT.35(T)] c) CC vs East Punjab Traders [1997(18)ELT.537 (SC)] d) Md Abdul Halim vs CC [2001(43)RLT.609(Cestat)] 2.3 That demand of Rs. 3,48,740/-, based on two delivery Challan Nos. 2 & 3 both dt 23/4/2007, is not sustainable as these goods were received in the factory of the main appellant from one of their traders company M/s Jai Bhavani Metal Company (JBMC) as major renovation work was in progress at JBMC. That JBMC under letter No JBMCJ/DGCEI/03/07/08 dt 5.9.2007, addressed to Supdt., DGCEI, Zonal Unit Mumbai; clarified the quantity of goods received and that the same were purchased from M/s Mahalaxmi Metal, Ahmedabad, who imported the same vide Bill of Entry No 5 dt 21.4.2007, under Delivery Challan dt 21.4.2007 and transported in truck No GT.17.T.4865 dt 21.4.2007. That even purchase of goods by M/s Mahalaxmi Metals from M/s Dharam Barrels was also documented. That in view of the documentary evidences furnished by appellant department cannot treat that quantity as manufactured and cleared by the appellant. That in view of the following case laws, documentary evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CCE, Surat, vs. Rajashree Dyes & Printing Mills Pvt Ltd [2014(305)ELT.442(Guj.)]. Learned authorized Representative thus argued that appeals filed by the appellants may be dismissed and appeal filed by the Revenue should be allowed. 4. Heard both sides and perused the case records. A case of clandestine manufacture and clearance was made against the main appellant based predominantly on the basis of 62 reconstructed copies of delivery challans-cum-proforma invoices. These were corroborated by investigation by recording the statements of the appellants who initially confessed to the offence and made certain payments towards duly demanded. It is the argument of the main appellant that 62 reconstructed challans-cum-invoices cannot be relied as they are neither original nor zerox copies without the identification of the author of these challan. It is not a disputed fact that the reconstructed challans were not recovered from the premises of any of the appellants. First Appellate authority in his order has also observed that nearly 20 of these reconstructed documents are fake or incorrect and accordingly dropped demand of Rs. 10,69,486/- out of total demand. Further, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the buyers are available to corroborate the authenticity of 62 reconstructed documents and the supply of finished goods contained therein. All such persons have stated that they have not received any goods against the reconstructed invoices. 4.3 So far as admissibility of oral statements as piece of evidence is concerned, it is a well established law that cross examination of witness has to be allowed as per Sec. 9D of the Central Excise Act 1994 if those statements have to be relied upon as held by Delhi High Court in the case of J&K Cigarettes Ltd vs CCE [2009(242)ELT.189(Del.)] and Basudev Garg vs CC [2013(294)ELT.353(Del.)]. In the case of CCE vs Saakeen Alloys Pvt Ltd [2014(308)ELT.655(Guj.)] following observations were made by Gujarat High Court in Para 7 and 10 regarding admissibility of statements where cross examinations was not provided and procurement for additional raw materials etc: "7.As can be noted from the decision of the Tribunal,? it has extensively dealt with the entire factual matrix presented before it. The Tribunal rightly concluded that in the case of clandestine removal of excisable goods, there needs to be positive evidences for establishing the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at the office/godown of JBMC, subject goods were temporarily stored in Appellants factory premises. It is observed from case records that there are documentary evidences to the effect that said goods were purchased by JBMC from M/s Malaxmi Metals Ahmedabad under delivery Challan No 5 dt 21.4.2007. This delivery Challan also has the Truck Number mentioned on it. No investigation has been done in order to refute the claim of the main appellant, by recording the statement of transporter or the supplier of trader from whom the goods have been claimed to be purchased from JBMC. It is a well established law that documentary evidence will prevail over an oral evidence especially in these proceedings where cross examination of such witness is not provided. On this issue following was observed in Para 8.1 of the case law DXN Herbal Mfg (India) vs CCE, Pondichery (supra), relied upon by the appellants. " 8.1The dispute now shifts to the last sentence of Note 16 which reads as : "Similar preparations, however, intended for the prevention or treatment of diseases or ailments are excluded (Heading 30.03 or 30.04)". M/s. DXN have claimed in their appeal that RG/GL can prevent, mitigate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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