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2019 (7) TMI 721 - AT - Central ExciseImposition of penalty u/r 26 of Central Excise Rules 2002 - Clandestine removal or not - supply of packing material and loose Gutkha - HELD THAT:- Apart from the fact that supply of loose Gutkha and packing material by itself cannot be held to be a crime or any illegal activity so as to call for imposition of penalty, the entire case of the Revenue is primarily based upon the statement of Shri Sanjay Rathore, who was a co-noticee as also on the statement of M/s.Kanti Chemicals. The said two deponents have not been examined by the Commissioner in terms of the provisions of section 9-D of the Central Excise Act and as is the well settled law, the said statements cannot be admitted as an evidence. If the said two statements are taken out of consideration, nothing survives with the Revenue so as to hold against the appellant. The adjudicating authority has not given any reason to doubt or reject the said statement of the appellant, which also stands recorded in terms of the provisions of section 14 of the Central Excise Act. In the absence of any positive, tangible and sufficient evidences against the appellant, there are no reasons to uphold the penalty upon him - appeal allowed - decided in favor of appellant.
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