TaxTMI 
TaxTMI 
2022 (3) TMI 915
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....d goods involving duty amount of Rs. 18,74,628 to various buyers whose names appeared in the print outs taken from the USB drive. The appellant in his statements further confirmed the statements of the suppliers of raw material and buyers of the finished goods recorded by the officers of department during the course of investigation in which the supplier or buyer as the case may be have admitted to have entered in to cash transaction with the appellant. 1.1 A show cause notice dated 30.11.2011 raising demand of duty of Rs. 18,74,628 along with interest and penalty under section 11AC of the Act was issued, however during adjudication Additional Commissioner by his Order-In-Original dated 31.07.2012 reduced the demand of duty to Rs. 11,22,927/- on account of correction in duty computation. The Appellant preferred appeal against the same and by Order-In-Appeal dated 02.05.2013 the matter was remanded to the adjudicating authority again for re-computation of duty. The Additional Commissioner by his Order-In-Original dated 26.05.2017 again confirmed the duty demand of Rs. 11,22,927/- after considering the direction of re-computation of proper duty demand. In appeal, however, the Comm....
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....y the adjudicating authority and their cross examination, though requested, has been declined contrary to the mandate of section 9D of the Central Excise Act, 1944. 2.1 As regards the statements of the appellant, he submits that appellant confessed to have removed goods involving duty of Rs. 18,74,628/- in the statements however, during adjudication of the show cause notice demand of Rs. 11,22,927/- was only held sustainable. He submits that this itself shows that statements of the appellant in which he confessed to have evaded Rs. 18,74,628/- of duty is not reliable as normally no person would confess to evasion of duty to the extent of 40% higher duty amount unless pressurized to do so. This shows that statements of the appellant was not voluntary. In that view appellant requested for following the mandate of Section 9D of the Central Excise Act, 1944 viz. examine/cross examine the deponents whose statements have been relied upon in the Show Cause Notice during the adjudication proceedings. However, the said request was rejected by the adjudicating authority. He submits that when the deponents are not examined/cross-examined in terms of Section 9D of the Act by the adjudicatin....
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....computer. Further condition under Section 36B (4) of the Act requires obtaining a certificate in this behalf by a person occupying the responsible official position in relation to the operation of the relevant device or the management of the relevant activity which is also not fulfilled. He submitted that print outs/data therefore would not constitute an evidence much less a reliable evidence to substantiate the allegation of clandestine removal of the goods and further relied upon the decision of this Tribunal in the case of Ambica Organics Vs. Commissioner of Central Excise, Surat reported as 2016 (334) ELT 97 upheld by Hon'ble Gujarat High Court reported as 2016 (334) ELT A67 (Guj) and Modern Laboratories Vs. Commissioner of Central Excise, Indore reported as 2017 (358) ELT 1179 (Tri. Del.) 2.4 Learned Counsel appearing for Appellant finally submitted that there was no discrepancy in stock of raw material or finished goods found in the factory of the appellant at the time of search in the factory of the appellant; there is no evidence of transportation of goods alleged to be clandestinely removed by the appellant and further no records of raw material supplied to the appellan....
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.... Steels Vs. Commissioner of Central Ex., Trichy - 2008 (231) ELT 434 (Tri. Chennai) • Commissioner of Central Ex. Trichy Vs. Shri Ulaganayagi Ammal Steels - 2009 (241) ELT 537 (Tri. Chennai) • Copier Force India Ltd Vs. Commissioner of Central Excise, Chennai - 2008 (231) ELT 224 (Tri. Chennai) • Lawn Textile Mills Pvt Ltd Vs. CESTAT, Chennai - 2018 (362) ELT 559 (Mad) 3.2 Learned AR further submitted that even when there is no direct evidence of manufacture of goods, the evidence in the form of statements of the appellant and other persons and computer print outs showing purchase and sale transaction is enough to shift burden of proof upon the appellant. In this regard he relied upon the following decisions: • Commissioner of Cen. Ex. Salem Vs. CESTAT, Chennai - 2019 (366) ELT 647 (Mad) • Commissioner of Central Ex. Vs. J. M. Agarwal Tobacco Co. Pvt Ltd - 2010 (261) ELT 1008 (Tri. Del.) • Sai Chemicals Pvt Ltd Vs. Commissioner of Cen. Ex., Raipur - 2010 (257) ELT 457 (Tri. Del.) • Ranjit Bakshi Gupta V. Commissioner of C.Ex. Calcutta - III - 2002 (149) ELT 407 (Tri. Kolkata) 4. Heard b....
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....chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry....