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17. We find that the Panchnama proceedings were clouded by procedural infractions as discussed above. In gathering of electronic evidence also Excise Appeal Nos.75409-75411/2020 due care was not taken. Other than the documents the evidence is mostly oral in the form of statements. The adjudicating authority has relied mostly on the statements of Shri Vicky Kumar and Shri Dharmendra Kumar. On-going through the statements we find that the statement of Shri Vicky Kumar as sketchy to the extent that on the one hand he says he as working from the last 5-6 moths and at the same time he confirms the details from 2011 onwards; his claim of the hard disc being given by somebody else is not controverted; the said Shri Shekhar was not identified and questioned. The statement of Shri Vicky Kumar recorded on 4-12-2015 is full of cuttings and corrections and no signatures accepting the corrections were taken. Shri Dharmendra kumar did not reveal any incriminating facts but simply identified that Shri Chittaranjan Sharma recorded raw material and finished products details and that any details would be informed by Shri Jaiswal. The statement of Dharmendra cannot by any manner help the investigation. Regarding the shortages he simply stated that they were marginal and acceptable for the industry. We also find that the statements of Shri Gyan Chand Jaiswal/Amit Jaiswal/Raj Jaiswal throw any significant light on the modus operandi. There were in fact no specific and incisive questions asked during the statements of management except that whether they have perused the statements of others. We also find that the writers of the diary were not identified and questioned; the copy of the Show Cause Notice issued to M/s Chanduka Tech was not supplied to the appellants though relied upon. So also some relied upon documents were not given. On the Top of it the Learned adjudicating authority writes a letter to the investigation Agency on the submissions and remarks made during the cross examination and relies entirely on the same instead of giving his own findings and comments on appreciating the facts. The copy of the same was also not given. Under these circumstances we need to evaluate the evidence, by the available corroborative evidence.

23. Coming to the brass-tacks of quantification, there are 2 sets of data. One data available from the hard disc from the alleged secret office and the data recovered from office premises. Learned Commissioner gives a finding that one who has indulged in clandestine removal of goods and consequent evasion of duty can hardly be expected to keep the evidence intact. This could true theoretically. But for practical purposes of quantification of duty evaded we cannot rely on assumptions, theories and guess work. It becomes very relevant in view of the fact that no corresponding enquiry, to establish relevant facts like procurement of raw material, use of the same in the factory of production, manufacture of excisable goods, sale of excisable goods, transportation of the same and realisation of sale proceeds, has been conducted and no evidence is placed on record. Even where certain leads on the numbers of vehicles Excise Appeal Nos.75409-75411/2020 alleged to be used in the transportation of goods to M/s Chanduka, no further enquiries were done. Even the shortage alleged to have been found on physical stock taking was minimal and would not lead to any conclusions.

24. Though we find that learned Commissioner has sweepingly generalised and extrapolated the duty demand for the period 1.4.2011 to 30.11.2015, the so-called corroboration from other documents/ evidences, is not however, forthcoming. As per the records of the case, seized Documents like note books / note pads (allegedly contain details like buyers name, date, amount received and expenditure incurred in cash) have details for the period June, 2015 and July, 2015; diary seized from the residence (allegedly containing details like parties name, date, amount received, and other transactions) pertain to the period from Apr, 2015 to July, 2015 and the data available from the hard disc from the alleged secret office and the data recovered from office premises contains data for the period 1.4.2011 to 30.11.2015. However, in addition to the disputable manner of collection of evidence, the concerned persons who have been alleged to have been maintaining such records have not been questioned. The handwritings thereof have not been identified/ established. Procurement of raw materials, consumption of labour, manufacture, removal and realisation of sale proceeds in a clandestine manner has not been established even by a sample case. Sad part is that, the investigation did not deem it fit to enquire from either the alleged buyers or transporters, even in the case of sale to M/s Chanduka Hitech, whose name came in to light though for a miniscule portion. The submissions during cross examination were not countered. A Show cause Notice, issued in some other proceedings, was relied upon and a copy of the same was not provided to the appellants. We find that Learned adjudicating authority has largely relied upon the clarifications given by the investigative agency. Learned Commissioner instead of appreciating the evidence vis-a-vis the allegations and drawing inferences and conclusions on his own, relied on the submissions of the agency. The appellants were not even supplied copies of the same. Under such circumstances, it is very difficult to uphold the allegations Excise Appeal Nos.75409-75411/2020 and confirm the duty demand and penalties, even going by the principles of preponderance of probability.