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TMI Blog2017 (6) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided in favor of appellant. - E/2169,2239,2341,2468,2469 & 2470/2011-EX(DB) - A/54125-54130/2017-EX[DB] - Dated:- 22-6-2017 - Mr. Satish Chandra, President And Mr. B. Ravichandran, Member (Technical) For the Appellant : S/Shri SP Mathew Ajay Singh, Advocates For the Respondent : Shri HC Saini, DR ORDER Per: B. Ravichandran These six appeals are against impugned order dated 31.03.2011 of Commissioner of Central Excise, Jaipur-II. The main appellant in these bunch of appeals is M/s Shree Raj Pan Masala (P) Ltd engaged in the manufacture of gutkha liable to central excise duty. The officers of Central Excise Intelligence conducted search and verification during August, 2007 in the premises of the main appellant. Simultaneously, verifications were conducted in various premises wherein the goods manufactured by the main appellant were available. The officers effected seizure various quantities of Bombay-1000 gutkha. On completion of further follow-up of investigation, proceedings were initiated against various persons including the main appellant. The case of the Revenue is that the main appellant indulged in un-accounted manufacture and clearance of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jodhpur. The goods were supposed to have been booked in the Delhi railway station to Kerala. There is no discussion as to how the goods manufactured at Jodhpur reached Delhi, about 400 KMs away. 5. The ld Counsel submitted the arguments on various documentary evidence relied upon by the lower authority. The defence of the main appellant is re- produced below: Document relied upon Evidence Remarks A1 Panchnama at Appellants factory No discrepancy found No un-accounted finished goods found. Raw material inventory taken. Majority of goods found tallying A2 to A7(except A3) Gutkha of Bombay 1000 brand found and seized. Few papers were reportedly evidencing payment of cash to Mr Thampi a Trader in Mumbai also found. Further The seized gutkha could not be correlated to the goods manufactured and cleared from the Appellant s factory. A3 Panchnama drawn at premises of Mr Rajesh Bhatia and Mr Shyam Bhatia Printout of data found in computer at their residence was seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers conducted investigation simultaneously with the main appellant as well as M/s Sunrise Food Products. Identical set of facts and evidences were considered in the proceedings against M/s Sunrise Food Products. The Tribunal vide final order 55966-55970/ 2016 dated 21.12.2016 held that such huge amount of excise duty cannot be demanded without tangible evidence. In the absence of suitable evidence, the Tribunal held that the demand of excise duty cannot be sustained. The present case also is on identical facts and evidences and the demands cannot be sustained here also. 7. The ld AR supported the findings of the lower authority and reiterated the reasons stated therein. 8. We have heard both the sides and perused the appeal records. On careful consideration of the evidences and submission of the main appellant, we find much force in their argument on non-existence of basic, credible and cogent evidences in the case made by the Revenue. The officers conducted search operations in various premises and seized gutkha. A case of calendestine manufacture and un-accounted clearance of gutkha has been made against the main appellant. We have noticed that various statements have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word shall in Section 9D(1), makes it clear that the provisions contemplated in the sub-section are mandatory. Indeed, as they permit to conferment of admissibility to oral evidence they would, even otherwise, have to be recorded as mandatory. 15. The rationale behind the above precaution contained in clause (b) of Section 9D(1) is obvious. The statement, recorded during inquiry/investigation, by the Gazetted Central Excise officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 16. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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