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2018 (6) TMI 122 - AT - Central ExciseClandestine Removal - undervalutaion of goods - cross-examination of witnesses not done - contention of the appellant is that the appellant has done trading activity and to that effect they have produced purchase invoices and sale invoices with regard to the trading activity, the same has not examined by the adjudicating authority properly and in haste concluded that the appellant has undervalued the goods. Held that:- In the remand proceedings, the adjudicating authority was directed to cross examine the witnesses whose statements have been relied upon. Despite the directions, the adjudicating authority chose not to give cross examination of the witnesses on the ground that they have never retracted their statements recorded during the course of investigation. The charging of clandestine removal is not sustainable, in the absence of any corroborative evidence except the statements. Moreover, the statements of the witnesses are to be tested in terms of Section 90 of the Central Excise Act, 1944 which specifies that first examination-in- chief is required to be conducted all the witnesses and thereafter the adjudicating authority has to confirm with the statements recorded is correct and over cross examination of the same to the assessee - in the absence of any cross-examination or corroborative evidence, in support of the statement relied upon, the charge of clandestine removal of goods is not sustainable against the appellant. Under-valuation of goods - Held that:- The demand on account of under valuation of goods to the tune of ₹ 1,03,21,612/- is not sustainable on the basis of merely computer printout recovered during the course of investigation without any corroborative evidence thereof - demand set aside. Appeal allowed - decided in favor of appellant.
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