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2016 (2) TMI 532 - AT - Central ExciseClandestine removal of branded Gutkha - entire demand has been confirmed on the basis of seized documents from third parties - statement of third parties - denial of cross examination - violation of provisions of section 9(D) of the Central Excise Act, 1944. - Held that:- In the impugned order, the statement of appellants were relied upon by the adjudicating authority to allege clandestine manufacture and removal of goods. We find that all the appellants filed their affidavits and these affidavits have not been examined. Therefore, statements given at the time of investigation cannot be blindly relied, as affidavits supplied by the appellants have substantial evidentiary value. Moreover, no cross examination has been granted by the adjudicating authority to reveal the truth in the matter. Therefore, the statement of appellants are not reliable in the absence of corroboratory evidence. We also take note of the fact that Shri Ajay Gupta who is prime witness of the case was not examined and is not made the party to the case. In the light of the decision of this tribunal in the case of M/s. Aswani & Co. [2014 (12) TMI 1213 - CESTAT NEW DELHI] and the discussion herein above, the case of the revenue remains inconclusive. Therefore, we hold that investigation conducted by the Revenue having loopholes is not proper. Accordingly, the allegation of clandestine manufacture and removal of goods is not sustainable. Consequentially, the impugned order is not sustainable in the eyes of law. - Demand set aside - Decided in favor of assessee.
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