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2019 (7) TMI 99 - AT - Central ExciseClandestine removal - clandestine procurement of large quantities of raw materials/inputs, which had been subsequently been used in the clandestine manufacture and sale of finished goods without payment of duty - appellants sought soft copy of the printouts of computer/laptop but the same were not supplied to the appellants - cross examination of panch-witnesses as well as Central Excise officers also sought but not provided - admissible evidences - section 36B of Evidences Act. HELD THAT:- The procedure prescribed under section 36B of Central Excise Act, 1944 has not been followed. Therefore, the printouts taken from CPU are not admissible evidence to allege clandestine manufacture and clearance. Moreover, in earlier round of litigation, this Tribunal has directed to supply soft copies of the documents but the direction of this Tribunal has not been complied with - thus as the adjudication authority has not followed the direction of this Tribunal, on this ground alone, the impugned order is liable to be set aside. Also, in the show cause notice, it has been alleged that printouts have been taken from the laptop whereas in the adjudication order, the adjudicating authority held that the printouts taken from the CPU which creates doubt. In that circumstance, on the basis of electronic printouts, the demands against the appellants are not sustainable. The allegation against M/s. Waryam manufacturer of ingots is not sustainable as no other corroborative evidence has been produced by the Revenue on record. Therefore, the demand confirmed against M/s. Waryam is set aside. In the case of M/s. Vee Kay, we find that the production capacity has been worked out to 10781 MT by the department itself - HELD THAT:- If we take alleged clandestine production into consideration the total production worked out to 186 41.01 MT which is beyond annual production capacity of M/s.Vee Kay - No contrary evidences has been brought on record by the Revenue. Furthermore, In the remand, proceedings, the adjudicating authority was directed to allow cross examine of the panchas and central excise officers whose statements relied upon by the adjudicating authority but no cross examination has been granted to the appellant. Therefore, the impugned order has been passed in gross violation of principles of natural justice and not following the direction of this Tribunal. As the Revenue has failed to come with positive evidence except printouts taken from the laptop/CPU, the charge of clandestine manufacture is not sustainable against M/s. Vee Kay. Therefore, the demand against M/s. Vee Kay is not sustainable - As no demand of duty is sustainable against M/s. Vee Kay and M/s. Waryam, therefore, no penalty is imposable on all the appellants. Appeal allowed - decided in favor of appellant.
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