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2020 (2) TMI 5 - AT - Central ExciseClandestine removal - on the basis of third party records - corroborative evidences or not - HELD THAT:- The contention of Revenue is that there is no third party involved in this matter. The said argument is not acceptable as Revenue itself is the litigant in this case who alleged that appellant is engaged in the activity of clandestine removal of goods. The said allegation is based on the record recovered from M/s PIL who is third party in this case. Strangely no show cause notice has been issued to PIL to impose penalty under Rule 26 of Central Excise Rules, 2002. Revenue’s case is based on the records recovered from M/s PIL and the statement of Shri Pankaj Agarwal. In terms of Section 9D of Central Excise Act, 1944 the Revenue was required to produce Shri Pankaj Agarwal in their defence to testify the documents recovered and the statement made by Shri Pankaj Agarwal are true and correct and thereafter the appellant was required to be offered for cross-examination of Shri Pankaj Agarwal. As the said act has not been done by the Adjudicating Authority, therefore, in terms of Section 9D of the Act, the evidence relied upon by the Revenue have no value in the eyes of law. As Revenue has failed to produce any supporting evidence in their favour, therefore, the charge of clandestine removal is not sustainable - appeal allowed - decided in favor of appellant.
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