9911796707
TMI Blog2019 (4) TMI 1685X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging that the excess usage of electricity had resulted in more production which was not recorded, the Revenue has not led any positive evidence to prove that the appellant did receive or found with cash which was also not recorded. There is also an allegation with regard to purchase of excess raw materials but, however, there is no positive evidence placed on record as to the excess/un-recorded cash found to have been used for the purchase of alleged excess raw materials nor is there any evidence or even reference to entry of vehicles/trucks into the factory premises for loading of goods thereon, security gate records, statement of lorry drivers, etc., and therefore, the other evidences are also of no weightage to conclusively hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings at DGCEI office vide annexure-A8 drawn, similarly floppy disk recovered. There is also mention about recording of statements of various persons like Directors, Managing director, Shri P. Rakesh Jain, Shri Uttam Chand Surana, Proprietor of Surana Tyres, Statement of Shri M. Raja, Branch Manager, Sri Dhanalakshmi, Lorry Services, Shri Mahendra Giridharilal Agrawal, Proprietor, M/s. Jitendra Tyre House, Shri Vijay Kumar, Proprietor, M/s. Kalpaka Rubbers, Shri S. Sathish Kumar, Proprietor of M/s. Supreme Motor Cycle Parts, etc., and therefore proceeded on the basis of the above statements and the evidences/documents available in floppy disk and hard disk, to allege that the appellant was manufacturing scooter tyres, auto tyres, tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction; Evidence of printouts recovered from the hard disk and floppy disk; Balance sheet of the appellant wherein it is alleged that there was a huge difference when compared with that of the dealers, transporters, raw material suppliers, etc.; The evidence of actual sale figure submitted with the bank but failing to raise invoice in order to remain in the SSI exemption limit; Various documents including invoices of the same number used for removals recovered from the dealers; No documents kept for most of the dispatches as against Way Bills from transporter, etc. The Order-in-Original also considers the purchase of raw materials also alleges that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to fasten the duty liability. Ld. Advocate s other contention is the non-compliance with the requirement of Section 36 B of the Central Excise Act when the Revenue has relied on the extracts/printouts of the floppy disk and hard disk. He also contended that the Revenue has nowhere obtained a certificate in terms of Clause-4 to Section 36 B and in this regard, relied on the order of the New Delhi Bench of the Tribunal in the case of M/s. Popular Paints and Chemicals Vs. CCE, Raipur- 2018 (8) TMI-473 (CESTAT-New Delhi). 5.2 Undoubtedly, there is no reference to any certificate obtained by the Revenue while relying on the printouts of floppy disk and hard disk and hence, the appellant s reliance on the order of the Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivers, etc., and therefore, the other evidences are also of no weightage to conclusively hold that there is clandestine activities. 5.4 The only other aspect left is the evidentiary value of un-corroborated statements of dealers. The Hon ble Supreme Court has settled this issue, in the case of M/s. Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkatta-II reported in 2015 (324) ELT 641 (S.C.). It is the settled position therefore that a statement which is sought to be used against a person shall be given to the person against whom it is being used, that person should also be provided with an opportunity of cross-examining such other person which is also the requirement of law as well as natural justice. E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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