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TMI Blog2022 (12) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. G.M. Carriers, Bhiwandi, Mr. A.A. Patni, in his cross examination has denied the maintenance of any such note book by them and has further contradicted the statement of Mr. Javed Gamir Sheikh, their employee. Thus, the said note book is not a reliable piece of evidence and further, the statement of Mr. Javed Gamir Sheikh is not an admissible evidence, as he was not produced for cross examination in violation of Section 9 D of the Act. There are no evidence of clandestine manufacture and removal of Goa brand gutkha has been found. The transporters of the appellant, M/s. KGN Transporter has not been investigated, at any stage. Further, admittedly, only minor /negligible variations have been found in the stock of the raw materials and finished goods in the course of inspection at the factory at Jodhpur. Admittedly, the documents resumed from Mr. Suresh B. Jajra are not related to this appellant but are related to other manufacturer like M/s. Royal Marwad, Ahmedabad, M/s. Meenakshi Foods Pvt. Ltd. and others. Such documents have been erroneously relied upon by the Revenue in demanding the duty under dispute. Mr. Suresh Jhajra has not supported the allegation of the Revenue dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Upon completion of investigation, a show cause notice dated 11.05.2011 was issued to the appellant demanding central excise duty to the tune of Rs.21,87,257/- for the period Feb, 2008 based on entries in a Note Book recovered from the premises of M/s. G.M. Carriers at Bhiwandi and interpretation thereof by one Mr. Javed Gamir Sheikh, an employee of M/s. G.M. Carriers. 6. The Adjudicating Authority in the case initially was the Commissioner of Central Excise, Jaipur-II, who granted cross examination of certain witnesses, but could not produce for the cross-examination, the crucial witness, Mr. Javed Gamir Shaikh, on the basis of whose statement and notebook, the entire demand was quantified and raised in the impugned notice. Subsequently, on account of change in monetary limits of adjudication, the Additional Commissioner, CGST and Central Excise, Jodhpur, confirmed the entire duty demand vide order-in-original dated 28.03.2019. Apart from the duty, mandatory penalty was also imposed on appellants while penalties on other noticees were imposed under Rule 26 of the Central Excise Rules, 2002. Hence, this appeal. 7. Ld. Counsel for the appellant urges as follows:- 7.1 No ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ague generic statements. The witnesses Shri Suresh Jain, Shri Ashok Jain Shri Praful Shah, whose statements were relied in the Notice, have not stated that the consignments of Gutkha in question in respect of which the demand is raised were received by them, least from the Appellants factory. 7.5 The alleged clandestinely removed Gutkha, according to the allegations in the notice were originally transported by one M/s. KGN Transporter at Jodhpur, who was neither summoned, nor searched nor any statement recorded. No investigation whatsoever was conducted or even attempted with the said transporter at Jodhpur. According to the allegations, the clandestinely manufactured Gutkha were first transported from Jodhpur to Ahmedabad and then trans-shipped through another truck from Ahmedabad to Bhiwandi, but no investigation whatsoever was conducted with the persons involved in the first leg of the transportation, linking it to appellants factory at Jodhpur. No investigation with any other manufacturer of Gutkha at Ahmedabad or nearby was conducted. 7.6 The concerned persons responsible for dispatch of Gutkha from the appellants factory at Jodhpur were never questioned in the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s.KGN Transport. 7.10 Many of the statements of witnesses, which were relied on in the notice were either retracted on the ground that were obtained forcefully by physical abuse or were disowned as involuntary during cross-examination of these witnesses. 7.11 That the impugned order-in-original is ex-facie illegal, bad in law and cannot be sustained in as much as the same is passed in gross violation of principles of natural justice, without considering the vital and germane facts governing the issue and ignoring the fact that entire demand is based only on the basis of oral statement of a single witness, without any evidence of clandestine manufacture and or removal. Failure to appreciate the above factual and legal position has resulted in gross mis-carriage of justice rendering the impugned order as bad in law and liable to be set aside. 7.12 That the ld. Commissioner in para 5.7.8 of the impugned order has referred and relied on few communications received by him from the investigating agency during the adjudication proceedings and without furnishing the copies thereof to the appellant, relied on the same to draw adverse inference against the appellant claim for supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before Hon ble Tribunal against the Order-in-Original No.JOD-EXCUS-000-COM-0013-17-18 dated 23.08.2017 passed by the Commissioner, Central Excise, Jodhpur and Hon ble Tribunal vide Final Order Nos.53456-53465/2018 dated 21.12.2018 allowed the appeal of their group company on the ground that Mr. Javed Gamir Shaikh was not produced and examined in the adjudication proceedings and thus, his evidence being hit by Section 9D of the Central Excise Act, 1944, becomes unreliable and accordingly, the contents of the note book are also rendered unreliable. Moreover, Mr. Javed Gamir Shaikh had no idea as to which transporter transported or removed the goods from the factory of appellant. It was concluded by the Hon ble Tribunal that revenue have not corroborated its allegations with sufficient reliable evidence and hence Hon ble Tribunal hold that the allegations in the show cause notice are based more on assumptions and presumptions, having no legal stand. As the case of the appellant is also based on same set of evidences and hence, case against the appellant does not stand scrutiny of law. 7.16 Ld. Adjudicating Authority failed to appreciate that the allegations of clearance of goods wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order as cryptic, non-speaking and issued without application of mind, and thus bad in law and liable to be set aside. 7.19 That the impugned order has been passed without giving any effective opportunity of hearing to the appellant, inasmuch as the appellant vide various submissions as mentioned in the facts of the case, specifically requested for cross-examination of witnesses, providing the copies of the relied upon documents (Sr. No. 3 to panchnama dated 01.03.2008 and the copy of CPU/ Hard disk recovered from the transporter s premises and the copy of the memo of cross-examination of the officer) in view of the principles of natural justice and the provisions of section 9D of the Central Excise Act, 1944. However, ld. Adjudicating Authority without conveying the decision on the request of the appellant and without granting any further hearing to enable the appellant to make further submissions, proceeded to pass the impugned order in mechanical manner without giving effective hearing, depriving the appellant to counter the allegations which has rendered the impugned order as bad in law and liable to be set aside. 7.20 Ld. Adjudicating Authority in para 5.7.7 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, who transported the goods from Ahmedabad to Bhiwandi and at whose behest goods were transported from Jodhpur to Ahmedabad. In view of the above, linking of the entries in the said register to the goods transported from Jodhpur cannot be sustained. Ld. Authority failed to appreciate that in the book containing pages 1 to 38 recovered at Sr. No.1, under Panchnama dated 18.02.2008 (RUD 21), does not reveal that the goods mentioned therein, were originally transported from Jodhpur to Bhiwandi via Ahmedabad and that it pertains to transportation of Gutkha and that too manufactured by the appellant in their factory at Jodhpur. Since the partner of M/s.G.M. Carriers stated that M/s. G.M. Carries were not involved in transportation and that transportation of Gutkha was carried out by M/s. Gujarat Marathwada Transport Service, whose partner is Shri Abdul Aziz Patni, whose statement is also relied on in the present case, Shri Abdul Aziz Patni was cross examined before the ld. Adjudicating Authority on 04.10.2012, wherein, he deposed they did not have any office in Jodhpur and that for transportation of GOA 1000 Gutkha from Jodhpur he had his agent in Jodhpur by name - M/s. KGN Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground is only for the reason that if manufacturer is held to be not liable for duty and penalty, for abetting such offence cannot be imposed. 8. Ld. Authorised Representative for Revenue relies on the impugned order. 9. Having considered the rival contentions and on perusal of the records, I find that the whole case of Revenue is made on the basis of the third party statements and some records and a note book recovered from the premises of M/s. G.M. Carriers, Bhiwandi. The entries in the said note book (private documents) are purported to have been made by one Mr. Javed Gamir Sheikh, an employee of M/s.G.M. Carriers, Bhiwandi, as stated by Mr. Javed Gamir Sheikh in his statement. He had deposed that these contain details of goods received from Jodhpur, both accounted and unaccounted. Mr. Javed Gamir Sheikh was not produced for cross examination by the Revenue, statement of whom was relied upon, who was the person, who claimed to have made the entries in abovementioned resumed note book and such entries were the basis for quantifying and raising the demand against the appellant. I further find that the partner of M/s. G.M. Carriers, Bhiwandi, Mr. A.A. Patni, in his cross exam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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