2017 (5) TMI 562 - AT - Central Excise

SSI exemption - N/N. 108/95-CE dated 20.11.9 - demand on the ground that the appellants have not supplied the certificate before clearance of the goods in terms of the condition of the notification - Held that: - If the clearance for which required certificate is not produced and the same are added to the clearance as per chart, the total clearance remain within the exemption limit under Notification - appellant is entitled for SSI exemption.

Whether the data retrieved from the CD is admissible evidence in terms of section 36(b) of the Central Excise Act or not? - Held that: - the data retrieved from the CD can be admissible evidence if it satisfies the provision of section 36(b) of the Act - the condition of section 36 has not been met out. Moreover, the printouts have been taken in the absence of the appellants and panchnama was drawn. The panchas were not allowed for cross examination by the appellants and the data retrieved from the CD was never confronted with the appellants during the course of investigation - the data retrieved from the CD is not admissible to confirm the demand.

Whether on the basis of data retrieved from the CD without further investigation, the demand can be confirmed against the appellants or not? - Held that: - In the absence of any corroborative evidence on the basis of the data retrieved from the CD, the demand is not sustainable - Further in the case of clandestine removal of the goods, the matter should be investigated in a prescribed manner - demand set aside.

Whether the statement made by Shri Arun Kheria during the course of investigation on 17.2.2005 agreed to duty on the clearance made to Kerala and Tamil Nadu Government is admissible in the facts and circumstances of the case or not? - Held that: - Merely making statement by Shri Arun Kheria does not cast liability on the appellant when the appellant is able to produce requisite certificate under Notification No.108/95-CE for clearances made to Kerala and Tamil Nadu Government. In that circumstance, the demand cannot be confirmed on the basis of statement of Shri Arun Kheria.

Whether the penalty can be imposed on the appellants in the facts and circumstances of the case or not? - Held that: - the demands are not sustainable against the appellants, therefore, the question of imposition of penalty on the appellants does not arise.

Appeal allowed - decided in favor of appellant.