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2022 (5) TMI 473 - AT - Central ExciseClandestine Removal - MS TM Bars - reliability of statements of appellants - third party evidences - levy of penalty upon the present appellants holding that all of them knew and had reason to believe that they were dealing with the goods which were liable for confiscation for want of deposit of duty for the same - HELD THAT:- The Original Adjudicating Authority Commissioner (A) also relying upon the statements of present appellants, have held that the statements are sufficient admission about the quantities of the MS Ingots, MS Rolls to be sold to M/s. Bhiwadi Rolling Mills through M/s. Rathi Bars Ltd. Without issue of invoice and without payment of duty. Accordingly the allegations of clandestine removal of the goods by M/s. Rathi Bars Ltd. have been confirmed and that the duty was demand was confirmed against the company and the penalty has been imposed upon the present appellants, they being the employee / commission agents for the company. But the allegations of clandestine removal are serious allegations which cannot sustain unless there is clinching evidence. Reverting back to the facts of the present case it is observed that except for the statement of the present appellants there is no investigation on part of the Department either from anyone who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing of excisable goods. Not only this, it is observed that the investigation initially began with the search in the premises of M/s. Bhiwadi Rolling Mills and the show cause notice has been issued based on the documents (soft as well as hard) as were recovered from the factory of M/s. Bhiwadi Rolling Mills as well as the residential premises of its Manager, Sh. Ankit Keriwal - Apparently and admittedly no search was ever got conducted in the premises of M/s. Rathi Bars Ltd. No document has been recovered from the premises of the said company or from the premises of either of these appellants - In such circumstances, it stands apparently clear that the investigation against the present appellants got initiated based upon the third party evidence and it got confirmed also based on third party evidence i.e. the documents as were recovered from the premises of M/s. Bhiwadi Rolling Mills. Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence - Apparently and admittedly there is no evidence of bifurcating the said consignment and bifurcation of the proposed / confirmed demands only on M/s. Rathi Bars Ltd. This lacuna on part of the investigation also hits the very basis of allegations and the demand confirmed against the appellant. In absence of the said corroborating evidence and in the light of apparent fact that the appellants have time and again been requesting for the witnesses to be cross examined but the request had been turned down, it is clear that violation of section 9 D of the Central Excise Rules 2002 is very much apparent on the record. Commissioner (A) has though held that since the witnesses have sufficiently admitted about the alleged guilt the cross examination is not required, the legal concept applied is absolutely correct. The submissions on behalf of appellant is not convincing that since main party has been given a discharge certificate under SVDRL Scheme the penalty on appellants be set aside - it is held that there is no cogent evidence on record to proceed against the appellant so as to penalise them. Hence, it is held that the authority below has wrongly confirmed the demand. Question of imposition of penalty on the present appellants in the given circumstances does not at all arise. Appeal allowed - decided in favor of appellant.
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