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2021 (2) TMI 493 - HC - Central ExciseClandestine Removal - applicability of principle of “beyond reasonable doubt” or on the principle of “preponderance of probability” - cross examination of co-Noticees - absence of cross examination of the co-Noticees - the documentary evidence itself lost its relevance, especially when none of the statements had been retracted by the tenderers - ignoring vital evidences presented by the Department - Penalty. HELD THAT:- The Tribunal found that there were serious lacunae in the investigation and analyzed those lacunae in respect of each of the demand. The largest demand was of ₹ 83.09 Lakh and the evidence in respect of the said demand was 136 LRs and daily book register and there was no evidence that so produced that could be relied upon. The investigation was not carried out at the end of the actual transporters and from the testimony of the staff member, who was examined, it transpired that M/s Aishwarya Roadlines, the alleged transporter was mere a booking agent. Demand of ₹ 65.85 Lakh - HELD THAT:- The Tribunal found that the documents recovered from the Octroi Department were only photocopies. The statements of transporters were without reference to any documentary evidence. Even the transporters were not allowed to be cross-examined. In respect of the demand of ₹ 55.92 Lakh, no investigation was carried out at the end of the consignee. The demand of ₹ 58 Lakh was based on theoretical calculations. Further the smallest demands of ₹ 4,61,000/- and ₹ 2,40,575/- were also based on statements whose Authors were not offered for cross-examination - The Tribunal also found that the evidence stated to have been recovered from the hard-disks was from the hard-disks which were cloned and showed loss of master boot record. The production of log-sheet so printed from cloned hard-disks, which the Tribunal rightly found could not be relied upon. The Tribunal also referred to Section 36-B of the Act of 1944 in respect of cloning and re-cloning of the hard-disks. It cannot be said that the assessment of evidence was perverse. Even assuming the burden was not stringent, even that burden was not satisfactorily discharged by the Appellant - Rest of the issues are purely questions of fact. Therefore, the issues raised and the questions framed in this Appeal are not questions of law. Penalty - HELD THAT:- As the demands were rightly not established against the Respondent, the issue of penalty does not survive. Appeal dismissed - decided against Revenue.
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