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2015 (11) TMI 1468 - AT - Central ExciseRestoration of appeal - Waiver of pre deposit - Appeal dismissed for non compliance with pre deposit order - Section 35F - Held that:- entries in the documents recovered from Sh. Gopal Krishan Agarwal also mentioned the vehicle number in which the goods had been transported and also the names of the customers but admittedly neither any inquiry had been conducted with the transporters nor any inquiry had been conducted with the consignees/customers. In follow up action, the factories of the appellant company had also not been searched and except for calling for the certain documents and recording of statements of their employees no other inquiries have been conducted. Statements of the Directors of the appellant companies have also not been recorded. - The most important part of section 9D which is relevant for the adjudication proceedings is sub section 2 according to which the provisions of sub section 1 shall, so far as may be, apply in relation to any proceedings under this act, other than proceedings before a court, as they apply in relation to a proceedings before a court. Thus the provisions of sub section (1) of section 9D which are applicable for prosecution proceedings before a court, by virtue of sub section 2 of section 9D, have to be applied as far as possible in respect of adjudication proceedings also. The word ‘so far as may be’ used in sub section 2 indicate that while the provisions of sub section 1 may not be mandatorily applied to adjudication proceedings but the same have to be applied as far as possible. In our view, when the case against an assessee is based only on the statements of a third party or the documents recovered from him, his cross examination would be necessary. There is gross violation of the principles of natural justice and hence, the appellants would have prima facie case in their favour. In view of this, the requirement of pre-deposit of duty demand, interest and penalty by the appellant company is waived for hearing of their appeals and recovery thereof is stayed - Stay granted.
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