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2018 (8) TMI 1655 - AT - Central ExciseClandestine removal - clearance of cheese cotton yarn in the guise of hank yarn - the main documentary evidence is the brokers commission file alleged to have been recovered from the factory premises - non-production of persons for cross-examination - Held that:- The said document cannot be relied and does not support the allegations raised in the show cause notice - Without producing the persons for cross-examination, the adjudicating authority has relied on the statements of these persons. The law is settled in this regard that as per section 9B of Central Excise Act, when the appellant has requested for examination/cross-examination, the same has to be considered and the statement without examination cannot be relied. Though it is alleged that appellant manufactured and cleared 156700 Kgs. of yarn in the form of cheese / cone without accounting and removed without payment of duty, no evidence is adduced to establish the purchase of cotton, payment made to suppliers for cotton, transportation, payment of freight, consumption of electricity etc. - when it is alleged that appellant cleared without accounting, the department has equal responsibility to adduce evidence as to the procurement of the raw materials as well as evidence for clandestine manufacture and clearance which is not brought to light, from the records of the case. The statement of Shri Elango, which was recorded on 16.11.1998 has been heavily relied by the department. It is seen that he has retracted his statement immediately on 24.12.1998 by filing a sworn affidavit. The department has not been able to establish the clandestine clearance or clearance of cotton yarn in the guise of hank yarn - demand cannot sustain - appeal allowed - decided in favor of appellant.
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