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2020 (1) TMI 532 - AT - Central ExciseClandestine removal - corroborative evidences or not - relied upon documents - entire demand has been raised on the basis of a pen drive/print outs record obtained from the premises of the third party and also the private records of the third party which were compared with the Appellant’s statutory records - whether the charge of clandestine removal can be made against the Appellant on the basis of documents obtained during the search conducted at the two other companies for which Shri Bharat Bhushan Sachdeva is common Director? HELD THAT:- During the search the pen drive was recovered which allegedly contained the data regarding the clandestine removal of the goods without any search being conducted on the Appellant’s premises. The data retrieved from the pen drive was compared with data contained regarding the manufacture production and clearance of the goods. It is on record that the Department has solely relied upon the data in the pen drive without any further corroboration by the independent investigation conducted for the activity by the Appellant - Although the statement of Shri Sachdeva dated 26.09.2009 was retracted and the existence of data in the pen drive from where the various files were extracted is not disputed. But any data contained in the pen drive/printouts has to be as per the provisions of Section 36B of the Act which has definitely not been followed by the Adjudicating Authority. The issue has been elaborately dealt in case of M/S POPULAR PAINTS AND CHEMICALS REFERRED AS, SHRI MANSOOR ZAFFAR, SHRI HUSSAIN ZAFFAR VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS RAIPUR [2018 (8) TMI 473 - CESTAT NEW DELHI], wherein it is held that following the mandatory requirement as contained under Section 36B of the Act the reliance cannot be placed on the data contained in the electrical device. Thus, there cannot be any reliance on the data contained in the pen drive, which has been taken as gospel truth in the case at hand. Reliability on statement of Shri Bharat Bhushan Sachdeva - HELD THAT:- The statement of Shri Bharat Bhushan Sachdeva can also not be relied upon for not following the prescription under Section 9D of the Act. Shri Sachdeva has not been examined by the Adjudicating Authority and also not cross examined by the Appellant. In the circumstances even the statement which has not been retracted cannot be taken as an admissible piece of evidence - the demand has been passed on the third party documents recovered from the premises of the Union and SEWPL which cannot be relied upon As the appeal main appellant SSWP is not sustainable there is no question of imposition of any penalty on the Director of the company, Shri Bharat Bhushan Sachdeva - Appeal allowed - decided in favor of appellant.
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