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2023 (12) TMI 299 - CESTAT KOLKATAClandestine removal - M.S.Rods - Reliability of Computer printouts - deemed document - demands confirmed in the impugned order has relied mainly on the documents recovered from various premises and the statements recorded during the course of investigation - corroborative evidences or not. Whether the data retrieved from various premises belonged to the Appellant's company and the data can be relied upon as evidence to demand duty? - Whether the conditions mentioned in Section 36B has been followed in this case or not, to rely upon the data retrieved through computer printouts as evidence? - HELD THAT:- Section 65B of Evidence Act is parimateria with Section 36B of the Central Excise Act, 1944. From the above observation of the Hon'ble Apex Court, it is found that unless the conditions of Section 65B(2) of the Evidence Act, which is parimateria with Section 36B(4) of the Central Excise Act are complied with, no reliance can be placed on any computer printouts . Admittedly, the procedure set out in Section 36B has not been followed in this case - in the present case the author of entry of data has not been identified. As per the impugned order the entry in computer was done by Shri Chittaranjan Bhukta or Sri Rajeev Agarwal or Sri Manoj Kumar Sahoo. However, no certificate was obtained from any of them - the material evidence available on record do not establish that the documents recovered from all the Factory, Registered office and the premises at Rameshwar Patna are all belonged to the Appellant Company and the data cannot be relied upon to demand duty - the questions answered in negative. Whether the procedure as set out in Section 9D of the Central Excise Act, !944 was followed in this case or not? If not followed, then whether the statements recorded under Section 14 of the Central Excise Act, 1944 can be relied upon to demand duty? - HELD THAT:- Had the adjudicating authority followed the provisions of Section 9D and examined the witnesses who have given the statements, the truth in this statement could have come out. Thus, the statements recorded in this case has lost its evidentiary value by not following the provisions of Section 9D. Thus, Procedure set out in Section 9D has not been followed in this case - Question answered in negative. Whether the allegations of clandestine clearance of finished goods by the Appellants are substantiated with corroborative evidence? - Whether the demands confirmed in the impugned order on clandestine clearance of finished goods is sustainable in the absence of any evidence of procurement of the major raw materials for manufacture of the finished goods M.S. Rods, without invoices? - HELD THAT:- The investigation has not brought in any corroborative evidence to substantiate the allegation of clandestine removal. In view of the above findings, the investigation has failed to establish the alleged clandestine clearance of goods by the Appellants and hence the demands confirmed in the impugned order are not sustainable - question answered in negative. Whether penalty is imposable on the Appellant company and it's Director and Chief Accountant on the basis of the evidences available on record? - HELD THAT:- In the impugned order, the adjudicating authority has concluded that Shri. G.D Agarwal is behind the entire clandestine activities. The MD of the company was in the direct knowledge of the entire clandestine operations in the company. The Chief Accountant was involved in the preparation of documents. Accordingly, penalty has been imposed on them. However, the evidences brought on record has not established that they are involved in clandestine manufacture and clearance of the goods. As the evidence available on record does not establish the clandestine manufacture and clearance, the penalty imposed on the above said persons is not sustainable - question answered in negative. Accordingly, the demand of duty confirmed in the impugned order are liable to be set aside. When the duty demand itself is not sustained, the question of demanding interest and imposing penalty does not arise - the impugned order set aside - appeal allowed.
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