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2020 (10) TMI 436 - AT - Central ExcisePrinciples of Natural Justice - Levy of Penalty u/r 26 of the Central Excise Rules, 2002 - Appellants submits that there is gross violation of the principle of natural justice and despite the remand by this Tribunal for denovo adjudication, the cross-examination was not permitted by the revenue - HELD THAT:- The writer of the chits/private documents was not examined therefore it raises doubt whether the same can be used against the appellants. Mere recovery of private records is not sufficient to prove clandestine removal and a concrete and clinching evidence is required to prove such allegation and it is for the department to discharge the burden and prove the charges of clandestine removal against the appellants. The department has to prove the allegation on the basis of cogent corroborative evidence which in the facts of the present case the department has failed to produce, so far as the appellant is concerned. From the records it is apparent that from the day show cause notice was issued, the appellants were asking for cross examination. Even despite the order of this Tribunal, the adjudicating authority did not permit the cross-examination and brushed aside the same while observing that the request is without any specific reason and is routine in nature. It is no doubt true that there is no right of cross-examination if sufficient corroborative evidence exists, but in the present case I am unable to find the sufficient corroborative evidence against the appellant and therefore the appellant were justified in asking for cross-examination. Since the cross-examination was denied therefore it vitiates the proceedings qua the appellants. Appeal allowed - decided in favor of appellant.
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