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2019 (5) TMI 508 - HC - Central ExciseClandestine removal - reliability of retraction of statements - Section 14 of the Act of CEA - Whether the Tribunal has committed error in holding that there was no material for making the order and whether the Tribunal has committed error in not considering the relevant material, which was produced before the adjudicating authority? HELD THAT:- The circumstance that the proceeding which was started against Jhunjhunwala was dropped could not have made much difference as Jhunjhunwala was examined before the adjudicating authority and there was material like record of M/s. Orian Laminators Limited showing supply of laminated film, which was not accounted by the assessee. There is huge material in support of the statements given, which is already quoted and that record is not at all touched and appreciated by the Appellate Authority. While deciding the appeal, the Tribunal ought to have touched that material and ought to have given reasons for setting aside the findings of the adjudicating authority but that is not done. In such a case, when the material of aforesaid nature is available, the burden or proof also shifts and assessee is required to explain the things made out by the material. For that, the provisions of Sections 106 and 114 of the Evidence Act can be used. This Court holds that the statements recorded under Section 14 of the Act of the witnesses, who were examined before the adjudicating authority can be used as admissions though they are retracted and they can be used in relation to the material, private documents recovered from the premises of the assessee and the premises of the suppliers, who had supplied raw material like laminated films - This Court further holds that the decision of the Appellate Tribunal is bad in law as the relevant material is not considered by the Appellate Tribunal - the decision of the Appellate Tribunal needs to be set aside. The matter needs to be remanded back - appeal allowed by way of remand.
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