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2017 (12) TMI 502 - CESTAT HYDERABADClandestine removal - Evidence - whether the papers/ records of third parties can be considered as evidence of clandestine clearance against the Appellant unit? - Held that: - it has been alleged that the Appellant Unit were clearing goods under the cover of invoices and once the goods reached the destination the invoices were taken back by the Appellant and were destroyed - there is no evidence to corroborate such allegation. In none of the seized records the reference of such invoices is appearing which can show that initially the goods were cleared under the cover of invoice and were later taken back by the Appellant and destroyed. Cross-examination of witnesses - Held that: - The adjudicating authority refused to accept the cross examination on the ground that the same has been given after two and half year and that the panch witness were not examined. The reasoning given by the adjudicating authority towards non acceptance of cross examination is not legal. The cross examination cannot be brushed aside on the ground of having been conducted after some time. The statements or records of the brokers/ agent has to be corroborated with the evidences unearthed from the Appellant unit. However there is no evidence of clandestine clearance has been found from the Appellant Unit. No incriminating records or documents showing removal of goods without payment of duty has been found from the Appellant Unit. Without corroboration of any evidence the third party records and their statements cannot be made basis for upholding the demand. The statement of director of Unit on the basis of third party records cannot be basis of demand as corroborative evidence has been brought on record. Also, the adjudicating authority himself has set aside the demand of ₹ 11, 15,930/- holding that no corroborative evidence of raw material or production has been brought on record. The said evidence would apply equally to all demands as nothing incriminating has been found from the Appellants premises. No duty demand can be made against the Appellant Unit and the impugned order dt. 31.01.2007 in as much as it confirms demands and imposes penalty against M/s Sundar Ispat Ltd. is not sustainable - charges against all the remaining Appellants i.e director of Unit Shri Vinay Agarwal and other co-appellants who are either broker or alleged recipients is also not sustainable - appeal allowed - decided in favor of appellant.
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