TaxTMI 
TaxTMI 
2022 (9) TMI 737
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....erent divisions of the appellants as were recovered from the Desktop of Shri Saumitro Ray. The printouts of all DCS were taken from appellant's Desktop in his presence and his statement was also recorded on 25.02.2014. Statements of others found at the time of search were also recorded and DCS of all the divisions were scrutinised. The recovered loose sheets were also thoroughly perused, and Department observed that the appellant has cleared sponge iron, Billets and TMT Bars and coal without issuing invoices with the sole intention to not to pay the requisite Central Excise Duty on those clearances. Accordingly, the clandestine removal of the finished goods is alleged alongwith violation of several provisions of Central Excise Rules, 2002. With these observations, the Show Cause Notice bearing No.20710 dated 16.12.2015 was served upon the appellants proposing the duty demand of Rs.46,32,957/- from the appellants alongwith interest and the imposition of penalty. The said proposal was partially accepted by the Original Adjudicating Authority vide which the demand of Rs.26,44,134/- based on scrutiny of DCS and loose sheets was dropped. However, demand of Rs.19,88,823/- was confirmed b....
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.... D of Central Excise Act, 1944. Secondly, none of those persons have ever made such statement, which may amount to admission of the alleged clandestine removal. The said findings of Commissioner (Appeals) based whereupon the demand has been confirmed are liable to be set aside and accordingly, the confirmation of demand is also liable to be set aside. 5. Ld. Counsel has relied upon the decision of Hon'ble High Court of Punjab and Haryana in the case of G.Tech Industries vs. Union of India [2016 (339) ELT 209 ( P & H)] wherein it was held that adjudicating authority cannot straightaway rely on the statements recorded during investigation unless and until the authority invokes section 9 D (1) of Central Excise Act. Decision of this Tribunal in the case of Vikram Cement Pvt. Ltd. vs. Commissioner of Central Excise, Kanpur reported in 2012 (286) ELT 615 has been impressed upon to submit that lack of investigation and lack of effort on part of Revenue to have been examined the several transporters except for recording the statement of Shri Ramesh Goyal is highly insufficient to conclude that goods were transported without invoices. Finally, it is submitted that there is no corroborativ....
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....djudication herein is about the admissibility of these documents. Commissioner (Appeals) in para 9 has concluded that those documents have duly been admitted not only by the Manager of the appellant but also by the transporter and those are sufficiently reflecting alleged shortage amounting to clandestine removal by the appellants. The documents have been held admissible by Commissioner (Appeals). 8. To adjudicate the correctness of these findings, foremost I perused the statements of Shri Saumitro Ray, who deposed to have been worked as Manager (Purchase) with the appellants for last six to seven months from the date of his statement i.e. 26.02.2014. He has deposed though he purchased the raw-material but subject to the purchase order gets approved by Shri P.K. Sahoo, the Director of the appellant. With respect to cost sheets, he has mentioned that the cost sheets have not been prepared by him. Persons from production division/the production In-charge would have been preparing the said cost sheets. This perusal makes it abundantly clear that Shri Saumitro Ray from whose Desktop the DCS were recovered is not the direct witness for those DCS, for the reason that he is not the autho....
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....tion sets out following circumstances in which a statement made and sanctioned by a person before Central Excise Officer of a gazetted rank during the course of inquiry or proceedings under the Act, shall be relevant for the purpose of proving the truth of the facts contained therein. "19. Once the ambit of Section 9D(1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub-section, which are contained in clauses (a) and (b) thereof. 20. Clause (a) of Section 9D(1) refers to the following circumstances : (i) when the person who made the statement is dead, (ii) when the person who made the statement cannot be found, (iii) when the person who made the statement is incapable of giving evidence, (iv) when the person who made the statement is kept out of the way by the adverse party, and (v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. If none of the circumstances contemplated by clause (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be....
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....spect is as follows:- "The relevant case law in the case of Bajrangbali Ingots & Steel Pvt. Ltd. & Suresh Agarwal vs. CCE, Raipur in Appeal No. E/52062 & 52066/2018 heard on 16.11.2018, which is held as follows:- "9. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon'ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India - 2014 (309) ELT 411 (All.) as also Tribunal's decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I - 2016 (335) ELT 297 (Tri.-Del.), CCE & ST, Raipur Vs. P.D. Industries Pvt. Ltd. - 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana Vs. Anand Founders & Engineers - 2016 (331) ELT 340 (P&H). It stand held in all these judgements that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods." 15. Otherwise also there is no corroborative evidence as is required to prove the charges of clandestine removal. Hon'b....