2017 (3) TMI 926

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....) 1 ATM 2.3.05 to 06.5.05   18,22,35,303.30   15,66,67,2 14 2,50,66, 754.22 5,01,335.08 2,55,68,089.30 2 SHIVA 07.5.05 to 16.9.05   35,02,87,889.00 30,11,41,582.70 4,81,82, 653.23 9,63,653.07 4.91,46,306.30 3 ATM 17.9.05 to 21.9.05   77,80,242.00 66,88,653.71 10,70, 184.59 21,403.70 10,91,588.29 4 ATM 22.9.05 to 12.11.05 5,16,58, 179.00 4,44,10,401. 47     71,05, 664.25 1,42,113.28 72,47,777.53 TOTAL   59,19,61,613.30 50,89,07,851.88 8,14,25,256.29 16,28,505.13 8,30,53,761.42   Consequently the duty demand of Rs. 8,30,53,761/- has been confirmed for the period 02.3.2005 to 12.11.2005 against the appellants along with interest and equal amount of penalty. The appellant has sought to assail the impugned order on various grounds including that the findings arrived at by the authorities below are not on the basis of any corroborative evidences. It has been urged that the authorities failed to offer all the witnesses for cross examination by the appellants, and to that extent there was serious infraction o....

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....- 2012 (279) ELT 134 (Tri. Del.). (b) Computer hard disk and pen drive were seized on 18.11.2005 from residence of Smt. Janski Sharma. Printouts were taken on 18.11.2005. But at page 131 of RUD-1 (page 490 of Appeal) there is entry dated 28.02.2006. How could entry be made on 28.02.2006 when the computer hard disk, pen-drive and printouts had been under seizure with the department since 18.11.2005. It creates doubts about the authenticity of RUDs. (c) Smt. Janki Sharma in her statement dated 18.11.2005 (RUD-4) has stated that she did not make entries in RUD-1 and 2. In her cross-examination she deposed that there was no printer in her house on 18.11.2005. in absence of printer, how the printouts could be taken on 18.11.2005? Moreover, Shri J.K. Aggarwal in his statement dated 20.07.2006 had stated that the appellants had no connection with RUD-1, 2 and 3. It appears that the computer printouts were prepared/ forged by the investigating officer at a later stage and not at the time of search as Smt. Janki Sharma had no printer at her residence. The printouts were also not taken in the presence of Smt. Janki Sharma or in presence of Shri. J.K. Aggarwal. (d) The Ld. Commission....

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....oods, in the form of (a) statement of drivers, transporters, GRs or vehicle numbers engaged in transporting the raw material to the factory; (b) statements of the appellants' staff which would have received the raw material or issued it for manufacture; (c) statements of employees who have used such raw material in the production of the finished goods; (d) statement of the alleged suppliers of raw materials; (e) evidence of payment of purchase price to the suppliers of raw material and receipt of purchase price by the suppliers. (iii) Similarly in respect of sale of the alleged production of the finished goods, there is no evidence about the transportation, statements of the appellants' employees engaged in the alleged production and sale of the finished products, statements of the buyers, receipt of payment from the buyers and excess consumption of the power. (iv) Reliance in this regard is placed on the Hon'ble Tribunals' judgment in the case of Essvee Polymers (P) Limited vs. CCE - 2004 (165) ELT 291 (Tri. ) and Hon'ble Allahabad High Court judgment in the case of Continental Cement Co. - 2014 (309) ELT 411 (All.). The statements of Smt. Janki Sharma....

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....se, the department has not been able to produce positive and concrete evidence to establish clandestine manufacture and removal of the goods. The impugned order is based on inadmissible evidence, assumptions and presumptions and is not, therefore, sustainable. Reliance in this regard is placed on the judgments in Oudh Sugar Mills Ltd - 1978 (2) ELT (J172) (SC) and Universal Polythene Inds. - 2001 (130) ELT 228 (Tri.). (viii) Since the demand of duty is not sustainable the interest and penalty are also not leviable. 5. The ld. DR on the other hand, submitted that the appellants in fact did not seek to cross examine all the witnesses but they wanted to cross examine only two witnesses and that is apparent from their letter dated 01.11.2008. He further submitted that the appellants have sought for cross examination of Smt. Janaki Sharma and Shri R.S. Aggarwal as referred to in letter from the appellant as confirmed by two of the employees of the appellants themselves namely, Hrishikesh Dubey, Accountant and Manish Sethi, part time accountant of the appellants. The fact that Smt. Janaki Sharma was the employee of the appellants was clearly confirmed by the said witnesses be....

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....s produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regular supply to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities." The computer printouts have been taken out as RUD-1 and 2 are in the form of prints taken out from the pen-drive as well as from the hard-disk recovered at the residence of Smt. Janki Sharma. Smt. Janki Sharma in her initial statem....

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....o the extent of 350MTs, which clearly seems to be inflated and unreasonable. 9. The appellant also raised the issue of infraction of principles of natural justice on the part of the adjudicating authority by not permitting cross-examination of some of the witnesses sought by the appellant. The cross-examination of Smt. Janki Sharma was permitted by the adjudicating authority and held on 10.02.2009. The claim of the appellant is that the impugned order also relied on the statement of Shri Hrishikesh Dubey, Shri Kashiram Puri, Shri R.S. Aggarwal and Shri Manish Sethi. Though they had requested to the adjudicating authority for cross-examination of all these witnesses vide their letter dated 13.10.2008, the adjudicating authority has not made these witnesses available for cross-examination. The appellant has submitted that ld. Commissioner could not rely on the statements of these witnesses without providing them for cross-examination. The view of the appellant finds support in the form of decision of the Hon'ble P&H High Court in the case of G. Tech Industries vs. UOI - 2016 (339) ELT 209 (P&H). 10. The entire allegation of clandestine removal made by Revenue is based on th....