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TMI Blog2021 (12) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... em through RTGS/Cheque. This deposition clearly falsifies the presumptive alleged modus-operandis. Law has been settled that mere statements are not sufficient to prove clandestine removal - Admittedly, there is no other evidence on record so as to relate to the clandestine activities of the assessee. Appeal allowed - decided in favor of appellant. - E/50764, 50765, 50885, 50886 & 50910/2020 [SM] - FINAL ORDER Nos. 52089-52093/2021 - Dated:- 22-12-2021 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Mr. Jitendra Singh, Advocate for the Appellant Mr.Pradeep Gupta, Authorised Representative for the Respondent ORDER The present order disposes of 5 appeals as tabled below. All of them arising out of same adjudication and the issue involved also been same:- Sl. No. Appeal No. SCN No. Date OIO No. Dt. OIA No. Dt. Demand/ penalty confirmed 1 E/50764/2020 V(74)41/SCN/AMW/BHD-I/2017-18 2677 Dt. 29.06.2017 153(CE)/2018-19 Dt.14.3.2019 12-16/SM/ CE/JPR/2020 dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Various incriminating documents, unaccounted non-ferrous metal and unaccounted cash were recovered during the search, which were detained by the DGCEI officers. The cash was alleged to have been generated by Shri Amit Gupta from the cash sale-proceeds without bills of sale of prime non-ferrous metals. Accordingly, a Show Cause Notice No.2677 dated 29.06.2017 was served upon the appellants herein proposing the demand as mentioned in the above table from main noticee M/s. Agrawal Metals alongwith the interest and also proposing the penalties against the remaining appellants as mentioned in the above table. The said proposal have been confirmed initially by the Order-in-Original as mentioned in the table above. The appeals, thereof have been rejected vide the order under challenge. Being aggrieved, the appellant is before this Tribunal. 4. We have heard Mr. T.R. Rustagi, Ms. Ekta Kapoor, Ms. Reena Rawat Mr. Jitendra Singh, ld. Counsels for the appellants and Mr. Prateep Gupta, Authorized Representative for the Revenue. 5. It is submitted on behalf of the main appellant that the appellant avails Cenvat Credit on the basis of invoices issued by the registered dealers on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been adopted by the remaining appellants. In addition on behalf of Shri Amit Gupta, it is mentioned that the entire case has proceeded on his statement as was recorded on 06.12.2012 but the said statement was recorded under compulsion, coercion otherwise also the answers in the said statement were not actually of Amit Gupta but were dictated by the investigating Officers only. The said facts have clearly been stated by said Shri Amit Gupta at the time when he was allowed to be cross-examined on 10.04.2018 by the co-noticees. The statement of Shri Sanjeev Maggu, the owner of impugned transport company, dated 06.03.2013 was also got retracted and his cross-examination dated 10.04.2018 reveals the correct state of affairs which are sufficient to falsify the entire case of the Department. It is impressed upon that the adjudicating authority below has failed to consider the said cross-examinations. Order is, accordingly, liable to be set aside. Appeals on behalf of remaining appellants are also prayed to be allowed. 7. To rebut these submissions, it is submitted by ld. D.R. that Commissioner (Appeals) has given the finding by discussing each of the issue placed before him. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure. He was brought to the office of DGCEI in the investigating officer s vehicle and, as such, was not at all mentally alert while giving the said statements. Answer to question No.9 therein clarifies that he denied having any share holding in the business activities of M/s. Forward Mineral Metals, M/s. Unnati Alloys Pvt. Ltd. M/s. Moral Alloys Pvt. Ltd. 10. He mentioned to be a practicing Company Secretary who was looking after the accounting and the Secretarial work of those Companies. He out-rightly denied about supplying invoices to several companies on payment of Commission. The incriminating record as was recovered by DGCEI from his premises, when shown to him, he denied the record to bear his handwriting. He also mentioned that no copy of any recovered record was provided to him till the Show Cause Notice was served upon him. Perusal of cross-examination of Amit Gupta on behalf of all the co-noticees makes it abundantly clear that his statement dated 06.12.2012 was an incorrect statement as none of the answer therein was correct nor actually were deposed by him rather were the dictated by the Department Officers only. Any use of fake builties of M/s.Leo Trans Logi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal that there are no justifiable reasons to deny the Cenvat Credit nor to impose penalty upon the appellants. The similar order has also been passed by this Tribunal in Final Order No.51800 51808/2018 dated 11th May, 2018 vide which the orders passed against the appellants on similar set of facts and circumstances were set aside. In that order also it was observed by the Tribunal that Departments entire case is solely based on the statement of Amit Gupta and other transporters for which no cross-examination was provided. As already discussed above, the only differentiating fact for the present case is that both the said persons have duly been cross-examined recording a clear retraction of their earlier statements. 13. With regard to the payments by Cheque also the Tribunal has observed that the Revenue s allegation of receiving the payments back in cash is not sustainable, for want of any evidence to that effect. Though some cash was seized from the premises of Amit Gupta but there is no connecting document produced by the Department in evidence to show that the said cash pertains to the impugned three invoices. The said decisions were announced in following cases:- (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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