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7. Heard Dr.Seema Jain (Advocate) and Shri Abhishek Srivastava (Advocate) on behalf of other appellants. They brought our attention to the said Annexure A and Annexure B to the show cause notice through which the quantification of demand was arrived at. They have submitted that the entire show cause notice is based on the presumption that for running of one DG set for one hour total high speed diesel required in litres was 26.25. Further each machine per hour produces 4800 pouches of Gutkha. Further there was another presumption that the appellant was running of 81 machines continuously. Further on the basis of inadmissible evidence, the quantity of high speed diesel allegedly consumed by the appellant for various months was stated in column 4 of the said Annexure A. On the basis of presumption of per hour consumption of HSD total hours for which 81 machines would have run was calculated and presuming that each machine produced 4800 pouches per hour, the running hours and the number of machines and factor 4800 was multiplied to arrive at presumed total production per month for the period from December 2006 to August 2007 and for such presumed production duty payable by the appellant was calculated at Rs.48,87,02,238/-. Similarly for the month of October and November it was presumed that 66 (sixty six) machines were working in the factory and each machine was giving 4,800 pouches per hour and on that basis demand of Rs.3,89,42,117/- was arrived at. The said two demands put together were demanded through the said show cause notice. They further submitted that Revenue arrived at the presumption of manufacture of 4,800 pouches per hour per machine on the basis of reply by Shri Nissar Hussain for one of the questions asked to him for recording his statement on 27.09.2007 and the question was of general nature. He was asked as to how many pouches one packing machine packs per hour to which he has replied that each machine is capable of packing 4,500 to 4,800 per hour. She has submitted that the question was not how many pouches they manufacture by using each machine in every hour, whereas the question was in general nature to know the capacity of each machine and that did not mean that all the machines were continuously running and producing 4,800 per hour and production took place and it was clandestinely removed. She has further submitted that consumption of Diesel @ 26.25 per litre per hour presumed by Revenue for calculation of said demand in the said Annexure A was contrary to the technical literature which indicated that 79.5 litre of high speed diesel is required to run the generator per hour. She further submitted that the presumption that 81 (eighty one) machines were working all throughout was also not correct because Shri Atul Agarwal, partner in his statement informed that generally 25 to 30 machines used to work at a time. She has further submitted that statement is on record which indicates that for running two machines, three workers are required. Statement is also on record which states that at any point of time around 30 workers were working which indicates that around twenty machines were working and no more than 20 machines could be working at any point of time. Further to run 80 machines 120 labourers were required and Revenue has not brought any evidence to show deployment of 120 labourers. She further submitted that there were no documents of transportation in respect of such huge quantity of HSD to the premises of M/s.Som Aromatics and that there was no evidence of payment of freight for transportation of HSD. Proprietor of M/s.Sharma Filling Station, in his cross-examination on 13.12.2011 stated that entire sale of diesel was shown in the account of 2 or 3 persons at the end of the day because it is not possible to show it in the name of all customers. She further submitted that the ledger of fuel stations and Bill books were never made available to the appellants and partner of M/s.Som Aromatics was never confronted with the so called evidence of sale of such huge quantity of HSD of fuel station to M/s. Som Aromatics and therefore evidence on the basis of which such huge quantity of HSD presumed to have been used by M/s.Som Aromatics as reflected in Annexure A is a third party evidence and therefore the same is not admissible in view of the provisions of Evidence Act as held by Honble Delhi High Court in the case of L.K. Advani vs. Central Bureau of Investigation as reported at 1997 (41) DRJ 274. Further there was no evidence or investigation for removal of such large quantity of finished goods and no evidence of receipt of such large sale proceeds in cash. Therefore she has submitted that the entire show cause notice is presumptive in nature and presumptions were in respect of number of pouches manufactured by one machine per hour, the number of hours the machines were running etc..

10. We have carefully gone through the case records and submissions made before us. We are in full agreement with the ld.Counsel for M/s.Som Aromatics that the said Annexure A which quantified the demand was based on various presumptions including the quantity of HSD required for running for one hour, the number of pouches that can be manufactured per hour from each machine and that 81 machines were running all throughout. Further the evidence of consumption of HSD was based on the record collected by Revenue from fuel stations and the same record was not confronted before the partner of the appellant M/s.Som Aromatics and therefore the said evidence became third party evidence in view of the pronouncement of the Honble High Court of Delhi in the said case of L.K. Advani (supra), and therefore, such third party evidence is not admissible. It was held in para 97 of the said ruling as follows:-