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2022 (9) TMI 428 - AT - Central ExciseClandestine removal - corroboration of the details of alleged clandestine clearances found in the diaries of the brokers with the consumption of electricity - demand on the basis of diaries of brokers - separate demand on the basis of these weighment slip recovered from Juvansinh Jeshabhai Solanki - HELD THAT:- It is admitted fact of both sides that most of the investigation in the present case are not only identical but common to the case of SHRI HARI STEEL INDUSTRIES, NAGJIBHAI JIVRAJBHAI DODIYA AND HIMANSHUBHAI NANDLAL JAGANI VERSUS C.C.E. & S.T. -RAJKOT AND C.C.E. & S.T. -BHAVNAGAR [2022 (8) TMI 1251 - CESTAT AHMEDABAD]. It is a fact that in case of Shri Hari Steel Industries also no shortage or excess were found in the factory premises, no investigation at the buyer’s end was conducted and no investigation in respect of Electricity raw material etc. was conducted. It is also a fact that in case of Shri Hari Steel Industries no examination in chief or cross examination was done. In these circumstance the decision of Shri Hari Steel Industries would be squarely applicable in respect of the demand raised on the basis of the diaries recovered from the brokers. Coming to the evidence collected from the residence of Juvansinh Jeshabhai Solanki, it is seen that the said slip are reproduced in the impugned order in para 3.4.8. It is seen from the said slips that there is no mention of the manufacturer’s name and therefore there is no direct correlation with the main noticee in this case, namely Pure Alloys Limited. Moreover, it is seen that there was no examination in chief or cross examination done and therefore, the only link between these weighment slips and the alleged manufacturer namely Pure Alloys, is the statements of Juvansinh Jeshabhai Solanki and Nareshbhai Ramsang Rana which cannot be admitted as evidence in absence of Examination under Section 9D of Central Excise Act. In these circumstances, no penalties in respect of these weighment slips also can be imposed. The penalties imposed against various appellants are set aside - Appeal allowed - decided in favor of appellant.
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