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2019 (12) TMI 1216 - AT - Central ExciseClandestine removal - MS Ingots - allegation that the appellants were carrying out activities of clandestine clearances in a pre-mediated manner with sole objective of defrauding the Government of its legitimate revenue in the form of Central Excise Duty - demand based on the statement of Shri Pawan Bansal, Director of M/s. Shree Jagdambay Castings Pvt. Ltd. as was recorded on 29.07.2013 - denial of cross-examination - Onus of proof - HELD THAT:- It is found that the said statement got subsequently retracted by Shri Pawan Bansal. It is further apparent that though the appellants received the relied upon documents, but they have been aggrieved of those not being legible. Legible copies thereof were insisted but were never made available. Adjudicating Authority below is observed to have ignored the repeated requests of the assessees for the legible documents. Copies of documents though are on record but perusal makes it clear that many of them are not at all legible. Denial of cross-examination - HELD THAT:- The denial of coss-examination in the given circumstances is opined to be unfair and unjustified. The order under challenge records that, “the case is mainly based on the record of M/s.BRMPL, which is duly corroborated by the statements of directors of BRMPL and the persons who were maintaining the records”. But no such record and the corroboration thereof has been specified by the adjudicating authority below. Onus of proof - HELD THAT:- The law is well settled that in respect of any allegation of clandestine removal the onus is squarely and solely on the Revenue to prove what it alleges and that onus of the revenue cannot be shifted to the assessee. The assessee cannot be called upon to prove the negative. There is no investigation whatsoever or any proof brought on record by the revenue in regard to the alleged clandestine production and unaccounted removal of excisable goods by the assessee. Mere allegation by the Revenue cannot take the place of proof. There is no iota of evidence apparent on record specifically to the corroboration of the software data recovered during search. There is no compliance of Section 36B of Central Excise Act Sub Clauses (2) & (4) prescribes very stringent conditions for Computer Printouts to be a piece of admissible evidence. Not even Section 45A has been resorted as there is no apparent opinion of examiner of electronic evidence - The law is also well settled that the adjudication in a quasi-judicial proceeding must be fair and objective and the authority concerned must act correctly in accordance with law. In the present case the adjudicating authority is opined to have acted solely to confirm demands mechanically with predetermined negative mind because of his bias and prejudice and no willingness to appreciate the facts and records and apply the law correctly. Appeal allowed - decided in favor of appellant.
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