2016 (10) TMI 736

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.... they are against the same impugned order dated 30.04.2010 of the Commissioner of Central Excise, Raipur. 2. The brief facts of the case are that the main appellant (Sunil Sponge Pvt.Ltd.) are engaged in the manufacture of Sponge Iron liable to central excise duty. Shri Anil Nachrani and Shri Sanjay Nachrani are the Directors of the main appellant unit. The Revenue also filed appeal against the same impugned order and also filed cross objection against the appeal filed by the main appellant. Certain investigations were carried out by the officers of central excise regarding possible clandestine manufacture and clearance of excisable goods by the main appellant during the period Feb., 2004 to December, 2012. On completion of the investiga....

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....ndestine manufacture. The Department heavily relied on the statements given by the employees, mainly on statement of Shri B.S Rathore, Process Incharge. The request for cross examination of the employees was declined by the adjudicating authority on frivolous ground . Various case laws were cited in support of the legal proposition in terms of Section 9 D of the Central Excise Act, 1944 to be applied in such situation. When the Director of the company denied the authenticity of the private records maintained and gave explanation in this regard, the cross examination of the employees is relevant. Clandestine clearance of more than 5,000 MTs will involve a larger number of buyers. The department located only one buyer. Though inquiries were c....

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.... ground that they were all employees of the main appellant/assessee and none of them retracted their statement till date. He further observed that the request for cross examination is only to delay the proceedings. On this issue, we find the records maintained by Shri B.S. Rathore is the main source of evidence in this case. The statement of three of the employees including B.S. Rathore has been relied upon by the Original Authority. It is a well settled position of law that when the statements are relied upon, the Adjudicating Authority has to follow the provisions of Section 9 D of Central Excise Act, 1944. The settled position of law has been followed by the Tribunal and various High Courts and the observation of the Original Authority i....

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....these private records and statements, it is necessary to get the truth of the matter after following the procedure laid down by the law. 8. Further, we also note that the chart submitted by the Revenue in para 10 of their appeal, shows that the private records and the RG-I and other statutory records were taken selectively to allege excess clandestine production. We note that wherever the figures are to their advantage to support the allegation of Revenue those figures were selectively taken in respect of some of the selective days to arrive at a calculation. Certain parameters have been taken as per RG-I and Form-IV, which are statutory records. The percentage yield is taken from the private records. We find that there is no consistent ....