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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 ..... origin is not known cannot be relied upon for establishing a case. Once the author of the documents is uncertain or documents are unsigned then the same cannot be put to test and scrutiny of an aggrieved person. Cross examination of the person who created these documents cannot be allowed to the appellants, as the source has no been identified. It has also not been brought on record as to from where main appellant procured the raw-material for manufacture of clandestinely cleared goods as held by Allahabad High Court in the case of Continental Cement Co Vs UOI [2014 (9) TMI 243 - ALLAHABAD HIGH COURT]. No Confirmatory statements 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. - 62 reconstructed challans-cum-proforma invoices cannot be relied upon for fixing the case of clandestine manufacture and clearance of finished goods against the appellants. No variation in the stock of raw-materials/finished goods was noticed in the factory of the main appellant during the search. No finished go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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/recorded inventory at the factory, trading shop and the Bhiwandi godown. That no incriminating documents were found at any of the three places of the main appellant. That even from the premises of the transporters no incriminating documents were recovered and none of the transporters were interrogated. That all the 11 alleged buyers of finished goods spread over different parts of country, categorically deposed that they had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have to be preferred over the oral evidences/statements. (a) Progressive Thermal Controls Pvt Ltd vs CCE [2003(157)ELT.44(T)] (b) DXN Herbal Mfg (I) Pvt Ltd Vs CCE [2006(199)ELT.533(T)] (c) Market chase Advertising vs CCE [2008(85)RLT.888(Cestat)] (d) IRP India vs CC [1995(10)RTL.669(Cestat)] 2.4 That in view of the above factual matrix case of clandestine re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 10,69,486/- out of total demand. Further, first Appellate Authority carried out detailed inspection during the proceedings before him and observed in Para 5.4.2 of the OIA dt 29.7.2011 that standing alone these documents have no evidentiary value as these are not found at the factory or recovered during the search. Regarding admissibility of documents whose origin is not disclosed it has been held by CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 evasion, though contended by the Revenue. In absence of any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consumption of power like electricity, seizure of cash, etc., the Tribunal noted and held that there was nothing to bank upon except the bare confessional statements of the proprietor and of some of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck 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 and cure diseases. But they have not named any disease. It was also argued by learned Counsel for the appellants that the products in question had both preventive and curative properties and that the buyers treated the goods as ayurvedic medicines. In this connection, learned Counsel referred to what was deposed by some stockist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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