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2021 (12) TMI 1231 - AT - Central ExcisePrinciples of natural justice - Clandestine removal - want of corroborative evidence - non-compliance of Section 9D of Central Excise Act - main contention of the appellant is the denial of opportunity of hearing and denial to cross examine Shri Brajesh Singh - HELD THAT:- Pursuant to the directions of remand vide Final Order No. 57092/2017 dated 12.9.2017, the original adjudicating authority had given the opportunity to cross examine Shri Brajesh Singh. The notice was served to the parties on three different occasions. It was served on available address but were returned by the postal authorities as undelivered. The appellant himself at the time of personal hearing on December 13 had acknowledged that said Shri Brajesh Singh was untraceable. The said Brajesh Singh was the appellants’ ex-employee but got untraceable due to which the appellant were neither able to contact him nor were in position to provide his alternative address. The department also reflected its inability to trace said Brajesh Singh. It is under said circumstances that the Original Adjudicating Authority proceeded to decide the matter on merits, in compliance of the directions of remand. In the given circumstances, it was the duty of the appellant to make said Shri Brajesh Singh available or at least Shri Abhishek Nandwani and Shri H K Nandwani for their cross examination. But the appellant, apparently had not taken any such step. These circumstances, in my considered opinion, amounts to sufficient compliance of the aforesaid provision on the part of the authorities. The absence of the cross examination of the person from whom the incriminating documents were recorded and those whose statements were recorded cannot diminish the evidentiary value in the given circumstances, thus has to read against the appellant. Evidentiary value of the notebooks recovered at the time of search, these being prepared by Shri Brajesh Singh and Shri H K Nandwani therefore, cannot be denied. There is no apparent denial for the entries on those private note books to not to have been accounted in the books of accounts of the appellants nor any other such document is produced by the appellants which may prove that the entries of those Notebooks do not pertain to the appellant’s day today business. There is no retraction of the statements by Shri Abhishek Nandwani and Shri H K Nandwani. The statements recorded rather have clear admission that entries in the note books as were seized are with respect to such transactions which were not regularly entered in books of accounts and for which the transactions generally were in cash. Appeal dismissed.
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