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2018 (11) TMI 825 - AT - Central ExciseClandestine removal - CTD Bars - fictitious trading challan - case of the department is based on the evidences recovered during the search of the premises of M/s Balaji Steels on 24.03.2005 - admissible piece of evidence - reliability on statement recorded - case of appellant is that the demand is based in assumptions and presumptions. Held that:- The diaries and other private documents recovered from the premises of broker are admissible pieces of evidence to establish the case of clandestine clearance against the noticee - in view of the said Section 36A, the department has prima facie discharged the burden of establishing the case of clandestine clearance against the appellants. It is also not the case of appellants, that the statements of recorded, were recorded under threat or duress and have been retracted by them immediately on the first available opportunity. In fact the statements made have never been retracted and on the repeated query from the bench, counsel for the appellant was not able to show any evidence to claim such retraction. Further from the adjudication order and the reply to show cause notice also it is evident that the appellants have never retracted their statements either in part or toto. In view of the evidences that have be produced and recovered during the course of investigation, along with the own admissions of the Director in the unit and the other conoticees, the Appellants contentions cannot be agreed with, that the charges made against them are based on presumptions and assumptions. On the contrary there is sufficient evidence to establish the charges against them - The reliance placed by the appellant on certain decisions of this tribunal in their appeal, cannot help their case because in the case of clandestine clearance the evidences recovered need to be examined in the fact of each case and it has to be shown that the ratio of the said judgment applicable to the facts/ evidences in the case under consideration - In absence of any such attempt on the part of the counsel to establish how those case are relevant for approving or disapproving the evidences in the present case mere citing of the decision will not advance the case of the appellants in matters of clandestine clearance which are fact and evidence based. There is no merit in the appeal and the appeal is dismissed - decided against appellant.
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