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2024 (2) TMI 431 - AT - Central ExciseClandestine removal - Tar Catcher - demand on the basis statements of parties/buyers, one supplier of raw material, and one director of the appellant - admissible evidence or not - HELD THAT:- The allegation of clandestine production and removal are required to be arrived at on the basis of positive and tangible evidences including the evidences relating to procurement of raw-materials, conversion of the same to final products, clearances of the same and identification of the buyers and receipt of unaccounted cash etc. It has been the ratio of various decisions of the higher courts that mere entries in the private records, do not, ipso facto, lead to the allegation of clandestine removal unless there is corroborative evidence to that effect from independent sources - It is well settled that the charges of clandestine removal are required to be made on the basis of positive and tangible evidence, the same being quasi-criminal in nature. The Revenue has miserably failed to produce corroborative evidence on records so as to substantiate the charges of clandestine removal. In the absence of corroborative evidence, in the present case “the charge of clandestine clearance” cannot be levelled against the appellant. The adjudicating authority has not followed the procedure as prescribed under Section 9D of the Central Excise Act for placing reliance on the statements of said witnesses - The provisions of Section 9D of the Central Excise Act, 1944 is very clear and by now, it is well-settled legal position that the Adjudicating Authority, if he intends to rely on the contents of any statement recorded under the Central Excise Act, 1944, then the procedure, as prescribed under Section 9D, has to be followed scrupulously. In the present case, it is found that the statements were relied upon as corroborative evidences and the cross-examination of witnesses who made such statements was denied without valid ground. It is found that, the admissibility of these evidences is legally not sustainable, and the same cannot be the basis for confirmation of duty on the goods allegedly manufactured and cleared by the appellant. It is observed that in the present case also the goods were lying within the appellant’s factory. There was no evidence on record to show that there was any attempt to remove those goods clandestinely without payment of duty - the goods in question were not liable to confiscation. Accordingly, the confiscation of the goods set aside - the impugned orders cannot be sustained - appeal allowed.
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