Amco Sales vs Delhi West.

Court
Customs, Excise and Service Tax Appellate Tribunal

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH- COURT NO. III
Excise Appeal No. 50478 of 2026

(Arising out of order-in-appeal No. DL/GST/WEST/COM/IA/10/2025-26 dated
15.12.2025 passed by the Commissioner of Central Goods & Service Tax, (West),
New Delhi . )
M/s Amco Sales
305, Jai Apartments,
Sector-9, Rohini,
Delhi-110085

…… Appellant

Versus

Commissioner Central Tax, Delhi
(West)
GST Bhawan, Nangal Raya, Jankapuri
New Delhi 110046

...... Respondent

APPEARANCE:
Mr. Rupesh Kumar, Senior Advocate, Mr. Piyush Kumar, Mr. Jitin Singhal, Mr.
Jitendra Singh and Mr. Ashish Bhatt, Advocates for the appellant
Mr. Rajat Malhotra, Authorised Representative of the department

CORAM:
HON’BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL)
HON’BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)


DATE OF HEARING: 31.08.2026
DATE OF DECISION: 08.09.2026


FINAL ORDER NO. 51433/2026

ASHOK JINDAL:
This second round of litigation.
2. In earlier ground of litigation, vide Final Order No. 57831-
57832/2017 dated 14.11.2017, the matter was remanded back to the
Adjudicating Authority with the following directions:
“15. Hence, it is required for the departmental adjudicating
authorities to first admit the statements in evidence in accordance
in the procedure prescribed in Section 9D before the same can be

Excise Appeal No. 50478 of 2026
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used against asseesse even in departmental proceedings the same
8 Excise Appeal Nos. 50190 – 50191of 2016 view has been the
followed by the Hon’ble High Court in several other cases including
case of G Tech 2016 (339) ELT 209 (P&H). By following above
categorical pronouncement of the Hon’ble High Court, we are of
the view that the impugned order merits to be set aside and
remanded to original adjudicating authority for complying with the
mandate of Section 9D of the Central Excise Act before passing
orders in de novo proceedings.

16. At the time of passing orders in the denovo he will also keep in
view the observations made in respect of the various evidences
used by Revenue for making the demand. Additional evidence may
be admitted as per law.”

3. The facts of the case are that the appellant was engaged in
manufacturing of Evaporating Air Coolers falling under sub heading
84796000 of the First Schedule of Central Excise Act, 1985. On
26.03.2010 a search was conducted at the various premises relating to
the appellant as well as residents of their proprietor Shir A.K.
Chaudhary, the visiting officers found the stock of evaporating coolers
found in factory and godowns premises. The documents believed to be
incriminating were also seized. A panchnama was drawn of seized
documents thereafter, various statements recorded on the basis of
documents seized and the statements recorded during the course of
investigation, a show cause notice dated 24.09.2010 was issued to the
appellant proposing to confiscate the seized goods after completing the
investigation of the case. Another show cause notice dated 17.10.2013
was issued proposing demand of recovery of Central Excise duty
amounting to Rs. 2,24,41,250/- on the charges of clandestine
clearance. Both the show cause notices were disposed of by earlier
order passed by the Adjudicating Authority confirming the charges of

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3

clandestine removal but accepting the plea regarding duplication of
demand and other arguments advanced by the appellant during the
course of adjudication, therefore, duty demand was confirmed of Rs.
94,87,283/-. The seized goods were held to be confiscated with the
option to get release the same on payment of redemption fine of Rs.
75 lakhs. Penalties were also imposed. Aggrieved from the said order,
appellants filed appeal before this Tribunal and this Tribunal remanded
matter back to the Adjudicating Authority with the direction referred in
paragraphs 2 above.
4. In remand proceedings, the Adjudicating Authority allowed
cross-examination of the ten witnesses sought by the appellant for
cross-examination only three witnesses were cross-examined. On the
basis of statement of cross-examination and on the basis of seized
documents as referred in panchnama, the value of clearances were
ascertained for the period of 2008-09 as Rs. 2,50,35,250/- and after
giving SSI exemption and cum duty price worked out to Rs.
55,362,50/- on which a duty of Rs. 4,21,458/- was demanded and for
the period 2009-10, the assessable value was ascertained Rs.
8,26,69,958/- wherein duty worked out to Rs. 68,12,005/-. Therefore,
total demand of Rs. 72,33,463/- was confirmed and alongwith interest
and equivalent amount of penalty was also imposed. Aggrieved with
the said order, appellant is before us.
5. The learned counsel for the appellant submits that in the
impugned order duty confirmed relates to Financial Year 2008-09 and
2009-10. He submits that the demand was mainly on the basis of Neel
Gagan Ledger, copy whereof was neither supplied to the appellant
alognwith the show cause notice nor during the course of initial

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4

adjudication or present adjudication proceedings. The said document
has not been produced by the department even before the learned
respondent Commissioner despite request by the appellant and
directions by learned Commissioner. Hence, the confirmation of
demand on the basis of the said document which has not been
produced by the department in the present adjudication proceedings is
ex facie perverse. The said Neel Gagan Ledger and other documents
referred in the impugned order and in original quantification of duty
demand were purportedly recovered from appellant’s premises i.e. Flat
No. 326 and 305 J Apartment, Plot No. 35, Sector-9, Rohini, Delhi
under Panchnama dated 26.03.2010, however, during the course of
adjudication Smt. Shanti Chaudhry in whose presence the search was
conducted on 26.03.2010 and panch of witnesses Shri K.K. Grover in
their respective deposition before the learned Adjudicating Authority
on 06.09.2024, 07.01.2025 and 16.09.2025 have categorically stated
that no such document was recovered during the search. Even the
seizing officer Shri Ashwin Kumar, Superintendent who had prepared
the panchnama in his deposition and cross-examination could not
prove the recovery of documents or produced the seized documents
before the learned Adjudicating Authority. Therefore, it is his
submission that present case being that of no evidence confirmation of
demand cannot be sustained being perverse and without evidence. He
further submitted that in the impugned order, the learned Adjudicating
Authority has quantified total value of clearances during 2008-09 at
Rs. 2,50,36,350/- out of which Rs. 194,46,550/- were quantified on
the basis of the said Neel Gagan Ledger which is neither supplied to
the appellant despite request nor produced before the learned

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5

respondent for perusal. Similarly, out of the total value of clearances
for the period 2009-10, quantified at Rs. 10,44,81,962/-, Rs.
6,10,9550/- has been quantified on the basis of the said Neel Gagan
Ledger and Rs. 2,98,47,800/- on the basis of other documents
purportedly recovered from Flat No. 236, Jaya Apartment and it is a
fact on record that aforesaid documents were neither supplied to the
appellant nor furnished before the learned Commissioner, therefore, if
these three values are deducted from the net clearances, value of the
period 2008-09 and 2009-10, the total turnover falls below the SSI
exemption limits rendering the impugned order perverse. Therefore, it
is prayed that impugned order be set aside.
6. The appellant also relied on the following decisions:
i. Flevel International Vs. Commissioner of Central Excise- 2016 (332)
ELT 416(Del.)

ii. Oudh Sugar Mills Ltd. Vs. Union of India- 1978 (2) ELT (JI72) (SC)

iii J.A. Naidu Vs. State of Maharashtra- 1983 (13) ELT 1611 (SC)

iv. Shri. Shafiqur Rehman, M/s Hamson Steel and Alloys Pvt. Ltd. Vs.
Commissioner of Central Excise & Service Tax, Tirupati - Final Order
No. A/3115-52/2018 dated 11.09.2018


7. It is a submission that charge of clandestine removal as is made
on the basis of relied upon documents and various statements
recorded during the course of investigation. Without complying the
provision of Section 9D of Central Excise Act, 1944 and without
providing the cross-examination of the tenderers of the statement, the
said statement cannot be relied upon as held by the following
decisions:
i. Jindal Drugs Pvt. Ltd. Vs. Union of India- 2016 (340) ELT 67 (P&H)

ii. Manek Chemicals Pvt. Ltd. Vs. Union of India- 2016 (334) ELT 302
(Guj)


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iii. Ambika International Pvt. Ltd. Vs. Union of India- 2018 (36) ELT
90

(P&H)

8. iv. G. Tech Industries Vs. Union of India- 2016 (339) ELT 209 (P&H)

9. In view of this, it is prayed that impugned order be set aside.
10. On the other hand, learned DR supported the impugned order
and drew our attention to his written submissions to show that there
were physical evidence available of the goods and vehicle seized on
the day of investigation. Further, the documentary evidence were
private records recovered during the course of investigation. He
further submitted that the documents were co-related with the
statutory documents maintained by the appellant and there were
differences between them, therefore, it was the clinching evidence to
show the clearances made by the appellant without payment of duty.
Further, he relied on the appellant’s statement recorded during the
course of investigation to show. Shri A.K. Chaudhary himself has
admitted the clearances of goods clandestinely, therefore, the
impugned demand are to be affirmed. In view of this, it is prayed that
impugned order be affirmed.
11. Heard the parties considered the submissions.
12. On going through the documents placed before us and various
arguments made by both the sides, we find the backbone of the case
is the Panchnama drawn during the course of search for better
appreciation of the facts of the case, the Panchnama is extracted here
below for consideration.

Excise Appeal No. 50478 of 2026
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8


13. On going through the Panchnama, we find that certain
documents were seized during the course of search but no such
document have been provided and it is not known what are the
contents of those documents. Moreover, the Panch witnesses were
cross-examined and during the course of examination, Shri K.K.
Grover the Panch has stated as under:

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14. Further, Shri Asim Kumar, Inspector who prepared the
Panchnama was also examined and in his statement , during the
course of examination he stated that Panchnama was concluded at
13:13 hrs from 26.03.2010 but in the cross-examination, Shri K.K.
Grover Panch witness stated that he was called for signature in the
Panchnama about 08 or 08:30PM in the Evening. As statement of both
witnesses, are contradictory, in that circumstances the Panchnama
drawn on 26.03.2010 is not reliable document. Consequently, seized

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10

documents mentioned in the Panchnama are also not reliable evidence
to allege clandestine removal by the appellant.
15. We further take note of the fact that the learned AR heavily
relied on the statement on the Shri A.K. Chaudhary during the course
of investigation whereas in his statement recorded on 03.09.2010
itself Shri A.K. Chaudhary stated that I have seen these are rough
entries and do not indicate anything, I am not aware who prepared it,
you are not giving copy, I am signing first and last page. The said
statement has not been contradicted by the Revenue and with cogent
evidence.
16. In that circumstances, as the documents on the basis of which
demand is proposed in the show cause notice were not shown to him,
therefore, the said documents are not reliable documents and the said
statement is not inculpatory statement.
17. We further take note of the fact that the Adjudicating Authority
has tabulated and calculated the demand for the year 2008-09 and
2009-10 is as under:
Clearance Value on the basis of Neelgagan Ledger
Rs.1,94,46,550/-
Clearance Value on the basis of Invoices
Rs. 10,89,700/-
Total
Rs.2,05,36,250/-
Less SSI Exemption
Rs.1,50,00,000/-
Cum-Duty Price
Rs. 55,36,250/-
Assessable Value
Rs.51,14,791/-
CENVAT @8%
Rs.4,09,183.3/-
Education Cess @2%
Rs. 8,183.66/-
Sec. & Eligher Edu. Cess @1%
Rs.4,091.83/-
Total Duty
Rs. 4,21,458/-

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Year 2009-10



Value of Coolers seized in Godown discussed in Para
Rs.2,96,06,000/-
64 supra)
(remitted as
Clearance Value on the basis of Neelgagan Ledger
Rs. 6,01,09,550/-
Clearance Value on the basis of GR's
Rs.1,18,650/-
Clearance Value on the basis of Invoices
Rs.9,42,810/-
Clearance Value of Dispatch from Deep Vihar
Rs.2,98,47,800/-
Clearance Value on Katchi Parchi
Rs.7,45,550/-
Excess Cash received in Book No. 1
Rs. 94,63,527/-
Amount Received from Buyers not mentioned in Book
Rs. 32,54,075/-
No. 2

Total
Rs.10,44,81,962/-
Less SSI Exemption
Rs.1,50,00,000/-
Cum-Duty Price
Rs. 8,94,81,962/-
Assessable Value
Rs. 8,26,69,958/-
CENVAT @8%
Rs. 66,13,597/-
Education Cess @2%
Rs. 1,32,272/-
Sec. & Higher Edu. Cess @1%
Rs. 66,136/-
Total Duty
Rs. 68,12,005/-

18. In the said table, the clearances for the year 2008-09, the
clearances value are only basis on Neel Gagan Ledger is 1,94,46,550/-
. The said Neel Gagan Ledger is not reliable document, therefore, the
said clearance value if deducted, the whole of the turnover of the
appellant come down within SSI exemption limit of Rs. 1 crore 50
lakhs in terms of Notification No. 8/2003 Central Excise dated
01.03.2003, therefore, appellant is not liable to pay duty for the year
2008-09. Further going to the said calculation for the year 2009-10
the value of clearances on the basis of Neel Gagan Ledger is worked

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out at Rs. 6,01,19,550/- and clearance value of dispatch from Deep
Vihar is also recorded as 2,98,47,800/-. If the said clearances are
reduced from the total turnover for the period 2009-10 which is
10,44,81,962/-, the total turnover for the period 2009-10 shall come
out within the SSI exemption limit i.e. 1 crore 50 lakhs in terms of
Notification No. 08/2003 Central Excise dated 01.03.2003. Therefore,
No duty is payable by the appellant for the year 2009-10 also.
19. In these terms, as the documents seized during the course of
drawing Panchnama are not reliable documents and the turnover the
appellant is well within the SSI exemption limit, therefore, the
appellant is not liable to pay any duty. Consequently, no penalty is
imposable upon the appellant.
20. In view of this, we set aside the impugned order and allow the
appeal with consequential relief, (if any).



(Order pronounced in the Open Court on 08.09.2026)

(Ashok Jindal)
MEMBER (JUDICIAL)



( P.V. SUBBA RAO )
MEMBER (TECHNICAL)
Shenaj