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2021 (10) TMI 1169 - CESTAT CHENNAICENVAT Credit - demand based on statements only and is not supported by any documentary evidence - reliability of statements - section 9D of Central Excise Act, 1944 - HELD THAT:- The case of the department is merely based on the statements given by G. Baskaran, proprietor of M/s. Sri Amman Steels and A. Veluchamy of M/s. Kamaraj Steels. These persons have not been examined under sec. 9D of the Central Excise Act, 1944 and therefore their statements cannot be admitted or relied in evidence. The Hon'ble High Court of Punjab and Haryana in the case of M/S G-TECH INDUSTRIES VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 957 - PUNJAB & HARYANA HIGH COURT] has held that the procedure under section 9D of Central Excise Act, 1944 has to be followed in adjudication proceedings. If the procedure of examining the witnesses is not done, the statement becomes irrelevant and no reliance can be placed on such statements. The content of the document (lab test report) has to be proved by primary evidence i.e., document itself. Document when reduced in writing are considered to be best evidence and is placed on a higher footing than the oral evidence. The very object of documenting something is to perpetuate the memory of what has been written down so as to furnish prove of itself. If the department relies upon the difference in the chemical composition of the raw materials used by the appellant and the goods cleared by the manufacturer as waste from their factory to be different, then they have to produce both these lab test reports. The difference is comprehended by the department on the basis of the statement of Shri P. Periyannan which is not admissible in law. None of these persons have been examined at the time of adjudication and only the statements are relied to confirm the demand. There are no hesitation to conclude that the department has miserably failed to establish the allegations raised in the Show Cause Notice - demand cannot sustain - appeal allowed.
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