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2019 (1) TMI 1427 - CESTAT NEW DELHIClandestine removal - MS Ingots - retraction of statements - opportunity to cross-examine the witnesses whose statements have been relied upon is denied - non consideration of written submissions - Held that:- Commissioner has acknowledged about appellant relying upon some case law along with various relied upon documents by the Department in the adjudication against M/s Kamdhenu based whereupon was initiated the impugned adjudication. However, the Commissioner (Appeals) without giving specific reason has simply mentioned that none of those documents and even the case laws are relevant in the instant case. Order under challenge has denied opportunity to appellants of cross examination by quoting a simple reason that no reason has been mentioned as to why the witnesses need to be cross examined by the appellant and that no evidence has been submitted for the same. But the adjudicating authority has failed to acknowledge that the entire relevant documentary evidence as could be produced by the appellant for any purpose was already taken in Department’s possession at the time of the search of premises on 13.02.2009 - Apparently and admittedly these documents were never returned to the appellant after the issuance of the SCN as was otherwise mandatory under Rule 24A of Central Excise Rules. Admittedly none of those documents were found incriminatory - the adjudication based on thirdy party evidence is not sustainable especially when in the adjudication against said third party there documents have already been observed as untrustworthy. Admission in the statement of Mr. Pawan Bansal - Held that:- No doubt admission is the best evidence unless and until the same is withdrawn. Admission of Mr. Pawan Bansal was withdrawn very next day with the allegations of coercion being exercised upon him while making him sign on statement of 13.03.2009 - the Commissioner is held to have definitely committed an error while still relying upon the statement of Mr. Pawan Bansal on 17.03.2009. The documents based whereupon the impugned adjudication has initiated are still under adjudication in view of the direction of this Tribunal vide Order dated 02.04.2018 - the present appeals be also remanded for denovo adjudication so that adjudication of present Appeals be taken alongwith the matter of M/s Kamdhenu Ispat Ltd. as has already been remanded so as to avoid any conflict of opinion - appeal allowed by way of remand.
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