Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2020 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 321 - AT - Central ExciseClandestine Removal - suppression of production - shortage of finished goods and raw materials (coal) - period April, 2011 to Nov, 2013 - admissibility of evidences and statements - corroborative evidences of not - Section 36B of the Central Excise Act, 1944 - Section 9D of the Central Excise Act, 1944 - HELD THAT:- The entire case of the department is based upon the computer printouts taken from the computer hard disk, from the premises of the appellant, at the time of search. That, on careful perusal of the Panchnama dated 04.07.2014 (RUD-15) drawn at the Room No. 113, Computer Cell of Central Excise, Hqrs, Raipur, it is found that that the officers have taken the printout (on the basis of which, Central Excise Duty of ₹ 3,03,41,494/- for the period April, 2011 to Nov, 2013 has been demanded)from the one time writable DVD (after copying), however, the said DVD has been written from Hard Disk No. 2 on 03.07.2014. We further find that the Panchnama dated 03.07.2014 has not been relied upon in the show cause notice, and neither the appellant nor his authorised representative was present on 03.07.2014, when the data from the Hard Disk No. 2 was retrieved on DVD. It is clear that the said Hard Disk could have been tempered, therefore, cannot be relied upon as evidence inasmuch the said data has been retrieved without ensuring the presence of the appellants - further, no certificate has been produced by the department as envisaged under Section 36B of the Central Excise Act, 1944, which provides the conditions to be fulfilled in order to admit the said documents in evidence. The computer printouts relied upon by the revenue are not admissible in evidence - As far as statements recorded under Section 14 of the Central Excise Act, which have been relied upon by the revenue, it is found that the learned Commissioner had denied the cross-examination of witnesses, therefore, in view of the decision of Andaman Timber Industries Vs CCE, Kolkata, [2015 (10) TMI 442 - SUPREME COURT] and CCE Vs Kurele Pan Products Pvt. Ltd., [2014 (4) TMI 463 - ALLAHABAD HIGH COURT], the said statements cannot be relied upon as evidence. Thus, the statements relied upon by the revenue are not admissible and cannot be relied upon as evidence and has to be eschewed from evidence - further, there is no corroborative evidence adduced by the department in order to allege huge production and removal of goods. There is no reliable evidence adduced by the department in order to prove clandestine production and removal of goods - the demand of ₹ 3,03,41,494/- along with interest and penalty for the period April, 2011 to Nov. 2013, on allegation of suppression of production and clandestine removal of Sponge Iron, is hereby set aside - further, the appellant has not contested the demand of Central Excise Duty ₹ 2,81,953/- on allegation of shortages of finished goods and raw materials, before the learned Commissioner. Hence, the duty demand of ₹ 2,81,953/- is confirmed, however penalty is set aside. Appeal allowed - decided in favor of appellant.
|