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2020 (3) TMI 15 - AT - Central ExciseClandestine removal - suppression of production - MS Round - MS Sponge Iron - demand based on various documents recovered and various statements - Section 9D of CEA Act - HELD THAT:- The search has taken place at the premises of the appellant on 20.08.2013 and during the course of search, the department has found some loose computer printouts and hand written loose sheets showing data in respect of production and clearance of MS Round (TMT Bar) and Sponge Iron for the period from December, 2012 to July, 2013. Thereafter, the department recorded the statements of Shri Basant Kumar Sahu, V.P. (Commercial) of the appellant under Section 14 of the Act. The case of the department is mainly based on the documents recovered, (the authenticity of the same has been disputed by the appellant) and the statement of Shri Basant Kumar Sahu, which has also been disputed by the appellant. The statement recorded under Section 14 of the Central Excise Act cannot be relied upon as an evidence unless the learned Adjudicating Authority follow the procedure prescribed under Section 9D of the Act - In the present case, admittedly no process has been followed. The private documents recovered at the premises remains unrebutted by the department. Also, the allegation of clandestine manufacture and removal in the present case is based on the (a) computer generated sheets and (b) loose papers which cannot be relied upon as evidence, inasmuch there is no indication in the orders passed by the authorities below that the appellant was maintaining computerised records of their production and clearance of goods and whether any other computerised sheets were traced out in the files withdrawn. There is no compliance of Section 36B of the Act. Merely deposit of money at the time of investigation would not amount to acceptance of allegations of clandestine manufacture and removal as alleged by the department - It is well settled law that, payment of money at the time of investigation would be treated as a deposit under protest. Further, the burden to prove allegation of clandestine manufacture and removal is heavily on the department and has to be discharged by producing clinching evidence on record, which has not been discharged by the department in the present case - appeal allowed - decided in favor of appellant.
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