TMI Blog2015 (5) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... s, distributors or dealers, record of unaccounted raw material purchased or consumed and not merely the recording of confessional statements. A co-ordinate Bench of this Tribunal has, in another decision, once again reiterated the same principles, after considering the entire case-law on the subject [Hindustan Machines v. CCE [2013 (5) TMI 543 - CESTAT NEW DELHI]. Members of Bench having hearing initially differed, the matter was referred to a third Member, who held that clandestine manufacture and clearances were not established by the Revenue. Estimation of quantity of goods manufactured and clandestine removal of goods by the appellants can not be slapped on the basis of averages arrived and calculated based on norms of gas consumption in manufacture of 1 MT of frit. It is rightly contested by the appellants that frit manufactured is not covered by any notification issued under Section 3A of the Central Excise Act, 1944 where Compounded Levy has been prescribed and capacity of the unit is required to be fixed on gas consumption basis, as done by the Revenue. It is observed that Revenue has attempted to adopt an estimation method for demanding duty and proving clandestine r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the assumption that after booking of the case these appellant enhanced their prices. In the case of transaction value realm the same product can be sold at different prices as per Section 4 of the Central Excise Act, 1944 unless actual additional consideration has been shown to have flown back to the appellants. In the absence of exact quantification of cash received by individual frit manufacturer, transaction value can not be enhanced even if there are half cooked circumstantial evidences to the proceedings indicating suspected undervaluation. It is now well understood that suspicion howsoever grave can not take the place of an evidence. Therefore, it may not be correct to hold that preponderance of probability should always be given to the Revenue, as Hon'ble Apex Court in a particular held it to be so. - Decided in favour of assessee. - Appeal No. E/1851-1854,1926-1928/2010, E/534,535,672-674,751,752,796-798/2011, E/11960-11962/2013, E/12386 to 13290, 13646,13649-13651,13688,13720,13721/2014, E/Extn/14339-14342,16385,16396,16398, 16856, 16399/2014, E/Stay/14140-14141/2014 - Order No. A/10541-10571/2015 - Dated:- 12-5-2015 - Mr. P.K. Das, Hon'ble Member (Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eramics Pvt Limited OIO-05/BRC-I/MP/2011 xvi E/797/2011. Hitesh M Vachhani OIO-05/BRC-I/MP/2011 xvii E/798/2011. Bhavesh M Vachhani OIO-05/BRC-I/MP/2011 xviii E/1016/2011. Latin Rasayani P Limited OIO-09/BRC-I/MP/2011 xix E/1017/2011. Vijay Organics OIO-09/BRC-I/MP/2011 xx E/1018/2011. Ramson OIO-09/BRC-I/MP/2011 xxi E/1019/2011. Mahendrakumar R Patel OIO-09/BRC-I/MP/2011 xxii E/11960/2013. Spire Cera Frit Pvt Limited OIO-51/COMMR/SURAT-II/2013 xxiii E/11961/2013. Angel Cera Coat OIO-51/COMMR/SURAT-II/2013 xiv E/11962/2013. Mahendra Virchand Patel OIO-51/COMMR/SURAT-II/2013 xv E/12386/2014. Zirconia Cera Tech Glazes OIO-AHM-EXCUS-003-COM-067-13-14 xvi E/12387/2014. Pravinbhai Narshibhai Patel OIO-AHM-EXCUS-003-COM-067-13-14 xvii E/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the dealers of Ceramic tiles. Part of the such extra cash amounts collected by the dealers and distributers was spent by the dealers to meet some undeclared expenses and the remaining cash amounts collected by the dealers of Ceramic tiles were either personally collected by the authorized representatives of the frit manufactures from the dealers or by frit manufacturers sales personnel during their visit to the dealers or through Shroffs and Angadias. (iv) That the most common method used for collecting cash was through bank accounts of ICICI and HDFC Banks. That certain Shroffs opened bank accounts in the name of large number of fictitious trading firms upon the instructions of Shroffs and these amounts used to be handed over either the manufactures directly or to their dedicated persons. (v) That in order to keep the manufacturing cost of Tiles low in the sale invoices, the manufacturers of tiles were also procuring a number of raw materials including Ceramic Glaze Frit, (Frit) by cash payments and not showing the actual value of the raw material in the books of accounts. (vi) That after the searches conducted by DGCEI on 17.1.2008, all the manufactures of Tiles in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gas is required by frit manufacturers which is claimed by lower authorities to have been admitted by frit manufacturers. Applying the average quantity of Natural gas consumed it is estimated by Revenue that there is also huge clandestine removal of frit by the Frit manufactures which is claimed to be supported by the Ajtak Ledger maintained by SANYO. (xvii) That it is also contended by Revenue that in the case of Belgium Glass Pvt. Limited vs. CCE, 55 units of electricity were required for manufacturing one MT of frit which according to investigation, is in consonance with the calculations done on natural gas consumption. Similar co-relation have been made for other appellants also with respect to gas consumed, electricity used and time taken for packing Frit into plastic bags. 2.1. After giving the above factual details and making the bench go through the impugned orders-in-original and remand order dated 31.3.2014 in appeal Nos. E/893 894/2011 of this bench, Learned Senior Advocate appearing on behalf of the appellants made the following submissions during the course of hearing as well as through written submissions filed from time to time:- (i) That all the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 63 (Tri)] (b) Santosh Tobacco vs. CCE [2014 (311) ELT 365 (Tri)] (c) Pan Parag India Limited vs. CCE [2013 (291) ELT 81 (T)] (vii) That in the absence of cross-examination of the Director of SANYO, it will be legally improper to apply the data of Comet AJTAKand CD relied upon by the Adjudicating authorities. (viii) That corroboration of an evidence can only be done on the basis of evidences which itself is credible and conclusive. That no inference can be drawn on the premises which are themselves inconclusive and based on conjectures, in view of:- (a) Sitaram Sao vs. State of Jharkhand [2007 (12) SCC 630] (b) R.K. Tomar vs. CC [2008 (228) ELT 232 (Tri.)] That evasion of duty cannot be worked out on the basis of Natural Gas Consumption only by making presumptions and assumptions as held in the case of Ondh Sugar Mills Limited vs. UOI [1978 (2) ELT J172)] (ix) That it is a well settled principle now that there is no bar on the part of an assessee selling the same product at different prices to different customer as per the concept of transaction value under Section 4 of the Central Excise Act, 1944 as held in the case of Hindustan Petroleum vs. CCE [2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 31.3.2014 of this order to bring home the point that in Para 6 of this case law, CESTAT has already opined that the manner of calculating frit quantity manufactured based on gas consumption was not correct. It was his case that on this basis alone the appeals where clandestine removal are estimated, need to be allowed as further studies have not been done by the Revenue in any of these appeals,. It was also his case that calculations/ estimations made on quantity of electricity consumed in certain processes and packing based calculations of finished goods also give different figures as compared to the clearances estimated on natural gas consumption based calculations. It was also argued that there is no basis in presuming that electricity consumption would be uniform per MT of frit manufactured when appellant is manufacturing different verities of frit which need different rounds of firing. Learned Senior Advocate also pointed to the data in annexures to show cause notices that there is vide variation in use of electricity and gas consumption even as per records maintained by appellant, which gives authenticity to the gas consumption records of the appellants. (xiv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturers have stated that their statements were not voluntary and that they had neither made unaccounted purchases of frit nor paid any additional consideration to M/s. Wellsuit Glass. In this regard appellant relied upon the case law, A.Tajuden vs. UOI [2015 (317) ELT 177 (SC)] (c) That evidential value of AJTAK printout taken from pen-drives of SANYO and CD can not be admitted as per cross-examination done in the de-novo proceedings of Wellsuit Glass and the facts which came into light. (d) That quantity of natural gas consumed for making 1MT of frit was based only on a single days experimentation when only one product code was manufactured. That there is no basis to presume that the quality determined this way will be applicable to all the 12 months of a year for different product codes, different seasons etc. Learned Advocate also argued that pressure of gas, quality of gas and its calorific value may also vary from time to time as indicated in the grounds of appeal. (e) That no finding has been given by the adjudicating authority to the aspect of modernization etc. undertaken by the appellants to reduce gas consumption as mentioned in Para 3.2 and 6 of the remand orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction values depending upon the market conditions, relationships with the client and assessable value of the highest of such transaction values can not be made as the basis of valuation under the provisions of existing Section 4 of the Central Excise Act, 1944. That other factors for increase in price of frit after January 2008 are:- (a) Increase in the price of borax and boric acid, which are also imported by appellants. (b) Exchange rate increased from ₹ 44.00 to ₹ 50.00 per Dollar. (c) Increase in raw material cost. 2.3 Shri Willingdon Christian (Advocate) on behalf of his clients adopted the arguments made by other advocates and also filed written submission. In the written submission it was argued that the records of M/s. Prime Ceramics Pvt. Limited [Appeal No. E/672-674/2011] ware audited in February 2006, June 2007, September 2009 and no irregularity in the records and documents was ever noticed. 3. Shri P.R.V. Ramanan (Special Counsel) appearing on behalf of the Revenue, during the course of hearings as well as through written submissions, made the following arguments:- (i) That the cases against frit manufacturers and the present appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely long time to file their reply thus delaying the adjudication process. iii) No satisfactory case was made out justifying cross examination o the individual witnesses. iv) In most of the cases, the witnesses produced the records maintained by them or their firm and merely explained the entries made therein. Thus, they were only providing information on true facts relevant to the cases. v) No counter evidence was produced to rebut such documentary evidence. vi) Statements of manufacturers/dealers of tiles and shroffs in so far as it related to frit were never retracted. vii) Noticees or their representatives had unequivocally accepted the veracity of the documentary evidence and the statements of several key witnesses, who vouched for the veracity and correctness of the documents. 3.2.1. That the grounds on which cross examination of witnesses has been rejected are valid in asmuch as most of the witnesses have provided documents/ records maintained by them or their firm and merely explained the entries made therein. That witnesses were only providing information on true facts relevant to the cases and in such circumstances, grant of cross-examination was really n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments were recorded were under threat or duress or coercion is indeed far-fetched, given the fact that the number of such persons exceeded 70. Nor can it be said that draft replies were kept ready by the investigating officers since many facts were within the exclusive knowledge of the persons who gave the statements. In this context, reference may be made to Para 6 at page 9 of the Appeal filed in the case of Belgium. There is no specific allegation of threat/coercion. (vi) Statements were recorded by different officers and on different dates spread over a long period of time. (vii) Facts as brought out in the statements find corroboration in the documentary evidence. (viii) It was purported in quite a few cases that affidavits stating the inculcator portions of the statements were not true and were given under duress, were executed/affirmed soon after the statements were given. Such purported retractions, in so far as they were not submitted to the concerned authorities soon after they were purportedly executed/affirmed, cannot be taken as made in time. Since these affidavits were produced at the earliest along with defense replies. (ix) That many cases, the noticees/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each piece of evidence. (iii) In the instant cases, Section 9D has not been invoked. But for reasons recorded in the Orders the adjudicating authorities have formed an opinion to deny cross examination of witnesses. While this opinion may be set aside by the appellate authority for violation of principles of natural justice but denial of cross-examination cannot by itself render statements recorded under Section 14 of CEA, invalid. Nor can the statement be eschewed from consideration. The Apex Court has held more than once that statements under Section 108 of CA, 62 (or section 14 of CEA, 44) are in the nature of an admission. (iv) That after explaining the provisions of section 9D, The Honble Delhi High Court has in the case of Basudev Garg - [2013(294) ELT 353 (Del)] and the Honble Tribunal in the case of P.M.S International Pvt. Limited - [2014 (3090 ELT(165) have remitted the case for fresh consideration by the Commissioner/ Tribunal but have not eschewed consideration of the evidence. Therefore, if denial of cross examination is the bone of contention, the appellant can seek a remand but there is no case for discarding the statement as not relevant. 3.3 That an imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation is not available in the instant case the values declared in the invoices have not to be accepted. That as per Section 4(1) (a) of CEA, 1944, the value for the purpose of assessment on each removal of the goods shall in the case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer are not related, and the price is the sole consideration for the sale, be the transaction value. By definition, a necessary concomitant of the transaction value is that the price should be the sole consideration for the sale. Thus, where additional consideration by way of cash flowed from the buyer to the assessee and the same was required to be paid by the buyer to the assessee, over and above the invoice price, one of the necessary conditions for the existence of the transaction valueat the factory gate is not satisfied. Further, the price indicated in the invoice is not the price actually paid for each transaction, as established by the evidence lent by the Revenue. In other words, in the present cases, the transaction values as envisaged under Section 4(1) (a) of CEA, 1944 did not exist. The amounts recovered by all the frit man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on data furnished was considered. The norm suggested by the management was 500. 7. Futura Consumption norm of 307.34 SCM based on observing a days production in respect of selected varieties of frit was considered. The norm suggested by the management was 310. 8. Wellsuit Consumption norm of 389 SCM based on test run in respect of selected varieties of frit. This was accepted by the management. Lowest Average consumption as per data furnished was seen to be 318 SCM and the same was taken as the norm. 9. Zirconia Consumption norm of 438 SCM (Lowest Avg.) based on data furnished was considered. The norm suggested by the management was 480. 10. SVM Cera The norm suggested by the management was 280. Consumption norm of 263 SCM (Avg.) based on test run in respect of selected varieties of frit was considered for adoption. 3.5.1 That varying criteria have been adopted for estimating production of frit. Consumption norm based on test run results was applied in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of goods have been worked out on the basis of average consumption of natural gas used in the manufacture of Frits. In addition, value of grit manufactured by these manufacturers is proposed to be enhanced alongwith clandestine removal of frit on the basis of private records, pen-drives and CD recovered from the tile manufacturers. In addition personal ledger recovered from a tile manufacturers M/s. Comet and certain writing pads and diaries recovered from the tile manufacturers. 5.2 The issue involved in Appeal Nos. E/1851 to 1954, E/11960 to 11962/2013, E/13649 to 13651/2014 is only regarding enhancement of value of frit based on the pen-drive recovered from SANYO and writing pads recovered but no clandestine clearances have been estimated by investigation on the basis of average consumption of natural gas as done in the case of appeals mentioned in Para 5.1 above. 6. In these proceedings the following issues are required to be deliberated upon:- (i) Whether the appellants mentioned in Para 5.1 above have indulged in clandestine manufacture and clearance of Ceramic Glazed Mixture (Frit), in view of the adjudication orders passed the adjudicating authorities on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be at least 266.640 NTs, and the total minimum monthly production for all the 5 kilns would not be less than 1333.200 MTs. 24.4.5. The above production of M/s. Belgium is fully substantiated from the Annexure F referred supra, wherein it is observed that during a period of 18 months out of the total 65 months covered therein, they have reported production of frit exceeding the quantity of 1300 MTs. In fact, during the month of July 2005, the recorded production quantity was 2574.500 MTs with a total gas consumption rate of 370.557 SCM per MT, which clearly reveals that the aforesaid calculated capacity of 1333 MTs is the barest minimum. Scrutiny of the chart, however reveals that during 15 months, they have declared production quantity less than 1000 MTs per month even with much higher rate of gas consumption. During 32 months, the total quantity declared by them in their statutory records was less than 1275MTs wherein also the gas consumption was exceeding the average requirement of 450SCM per MT. 24.5.4. Thus the above Panchnama proceedings, unambiguously revealed that the normal time required for manufacturing 50 Kgs of frit was 8 minutes, i.e. 100 Kgs in 16 minutes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accounts gives a certification to the correctness of the data maintained by the appellant. The very fact that using gas consumption method and time taken for packing finished goods adopted by the lower authorities gives different estimations of manufacture and clearances by this appellant, the same can not be taken as a correct/ dependable method for calculating clearances and is also not prescribed. In the case of Belgium Glass Ceramic Pvt. Limited, as per Annexure-F to the show cause notice dated 08.10.2009, gas consumptions of 383.715SCM and 321.959 SCM for manufacturing one MT have also been indicated in the records of the appellants alongwith higher consumption of gas. It is not understood as to why an arbitrary figure of 450SCM per MT is required to be taken for estimating the production/ clearance of finished goods Frits. In the same Annexure-F the units of electricity consumed in certain months is less than 55 units and is even as low as 40.153 units. The above data of the appellant contained in Annexure-F to the show cause notice dated 08.10.2009 reflects that records maintained by this appellant are genuine and correct. There is no corroborating evidence of excess/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no need to prove such clandestine clearance with mathematical precision. These were cases where evidence was available regarding unaccounted duty paid goods being found, shortage of finished goods found and evidence regarding supply of raw materials and receipt of commission by brokers, which were all tangible evidence of clandestine clearances. It was further submitted by the ld. Senior Advocate that the cases cited by him were cases where no such evidence was available at all and the law laid down as applicable to such cases, to which category the present case belongs. 40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) Raw materials, in excess of that contained as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A co-ordinate Bench of this Tribunal has, in another decision, reported in the E.L.T. issue of 5-8-2013 (after hearings in the present appeals were concluded), once again reiterated the same principles, after considering the entire case-law on the subject [Hindustan Machines v. CCE [2013 (294) E.L.T. 43]. Members of Bench having hearing initially differed, the matter was referred to a third Member, who held that clandestine manufacture and clearances were not established by the Revenue. We are not going into it in detail, since the learned Counsels on either side may not have had the opportunity of examining the decision in the light of the facts of the present case. Suffice it to say that the said decision has also tabulated the entire case-law, including most of the decisions cited before us now, considered them, and come to the above conclusion. In yet another decision of a co-ordinate Bench of the Tribunal [Pan Parag India v. CCE, 2013 (291) E.L.T. 81], it has been held that the theory of preponderance of probability would be applicable only when there are strong evidences heading only to one and only one conclusion of clandestine activities. The said theory, cannot be adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only factor or basis for determining the duty liability, that too on imaginary basis, especially when Rules 173E mandatorily requires the Commissioner to prescribe/fix norm for electricity consumption first and notify the same to the manufacturers and thereafter ascertain the reasons for deviations, if any, taking also into account the consumption of various inputs, requirements of labour, material, power supply and the conditions for running the plant together with the attendant facts and circumstances. The Tribunal further observed that no experiment have been conducted in the factories of the appellants for devising the consumption norms of electricity for producing on MT of steel ingots. Tribunal also observed that the electricity consumption varies from one heat to another and from one date to another and even from one heat to another within the same date. Therefore, no universal and uniformly acceptable standard of electricity consumption can be adopted for determining the excise duty liability that too on the basis of imaginary production assumed by the Revenue with no other supporting record, evidence or document to justify its allegations. The Tribunal has also consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bench to the fact that services of a Ceramic consultant was engaged to get better yield. He relied upon the submissions and records to show the purchase of new Kiln and generating set. It was due to these efforts that the ratio of gas consumption from 2008-09 onwards went down from 844 SCM/MT to 286 SCM/MT as indicated in Para 13.2 of order-in-original dated 10-5-2011. That before 2008 there was no generator available with appellant and every time there was a power failure, large quantities of gas was used in re-firing the Kiln. He produced documents relating to installation of DG Set. He referred to the purchase bills to show superior quality of refractories replaced in the Kilns after 2008-09. He argued that as per the statement of Shri Balkrishna Thakkar himself, which is recorded by the department, there cannot be any fixed ratio of gas consumption and that after the new management took over, they have improved the efficiency of the unit and that mere gas consumption cannot be used as a factor for clandestine manufacture and removal. He explained that frit consists of two components i.e. glass and silicone dioxide. That the melting point of glass is very high and other mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2011. It is observed that during conducting of gas consumption studies on 23/24-2-2010 by investigation only frit product code OP 202was being manufactured. It has been contested by the appellant that different frit product codes may consume different quantities of gas. As the appellant is not undertaking the manufacture of one standard product, in the interest of justice, it will be appropriate to conduct a few more representative studies of different frit product codes in order to arrive at a more realistic gas consumption PMT of frit manufactured. 8.6 In view of the above observations made by this Bench it has already been held that method adopted by the investigation to estimate clandestine removal of finished goods is not sound and has to be discarded. However, Revenue was given an opportunity to strengthen their case by corroborating evicence with some more factual data from additional studies. No appeal has been filed by the Revenue against the above order passed by this Bench. It is also observed from 3.2 of the remand order that appellant has made certain changes in the plant and machinery and other methodologies to reduce gas consumption. Even in the remand proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Shri Thakkar that as he remembers the seized pen-drive was placed in a paper cover and sealed with adhesive tapes. It is the claim of the appellants that the way the said pen-drive was handled, it is possible that the same could be tempered with as the same was kept in the paper cover sealed with adhesive tapes. A second Panchnama was made on 30.8.2008 where the said pen-drive was mentioned to have been taken out of a sealed cover when the first Panchnama never mentioned keeping the said pen-drive in a sealed cover. It is also observed that on 30.8.2008 the sealed cover was opened but contents of the silver pen-drive were not opened on 30.8.3008 but instead another black colour pen-drive was opened. On 06.9.2008 under a Panchnama the said silver pen-drive taken out of the sealed cover and on opening this pen drive in the Tally Folder, no data was found to be available. However, under another Panchnama dated 12.09.2008, when the said silver pen-drive was opened data was found in Tally Folder which is the relied upon as Aajtak XYZ. There is a strong force in the arguments made by the appellants that when no data was found in Tally folder on 06.9.2008, how the relied upon docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 10.2 In the case of J.K. Cigarettes Limited vs. CCE (supra), following conclusions were drawn by the Delhi High Court, in Para 32:- 32. Thus, we summarize our conclusions as under :- (i) We are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately. Hon'ble Supreme Court in the case of UOI Anr. vs. GTC India and Ors in order dated 03.01.1995 arising out of SLP (C) No. 218131/1994 has already laid the following ratio: Special leave granted. Heard. The impugned order dated 05.9.94 has to be read alongwith Section 9D of the Central Excise and Salt Act, 1944. SO read, there is no infirmity in the impugned order. It may, however, be clarified that in case reliance is placed on the provisions of Section 9D of the Act in respect of any particular witness, intimation of the same is required to be given to the respondents and it would be open to the respondents to approach the High Court against the order made by the authority in that behalf. That appeal is disposed of in these terms. No costs. Further in Para 16 and 19 of case law A.Tajudeen vs. UOI[2015 (317) ELT 177 (SC)] Apex court very recently held as follows on admissibility of statements and cross-examination:- 16. Having given our thoughtful consideration to the aforesaid issue, we are of the view that the statements dated 25-10-1989 and 26-10-1989 can under no circumstances constitute the sole basis for recording the finding of guilt against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the amount recovered from the residence of the appellant was dispatched by Abdul Hameed, a resident of Singapore, through a person who is not an authorised dealer in foreign exchange. Even, in response to the memorandum dated 12-3-1990, the appellant had acknowledged the recovery of ₹ 8,24,900/- from his residence, but that acknowledgment would not establish the violation of Section 9(1)(b) of the 1973 Act. In the above view of the matter, we are of the opinion that the execution of the mahazaron 25-10-1989, is inconsequential for the determination of the guilt of the appellant in this case. In view of the above, by not allowing the cross-examination of the relied upon witnesses under Section 9D of the Central Excise Act, 1944, the evidentiary value of such statements does not survive and is required to be discarded. We accordingly hold so. 11. It is also the case of the appellants that all the transactions are made by the appellants at the factory gate. That only exact amount of additional consideration received by each appellant has to be added to the transaction value and that no such quantification has been done by the Revenue which could be attributed to each man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amount of such additional consideration was required to be determined for addition to the transaction value even if all the statements and documents were held to be admissible evidence and satisfied the test of Section 9D of the Central Excise Act, 1944. In Appeal Nos. E/11960/2013 and E/12386/2014, the valuation has been enhanced solely based on the assumption that after booking of the case these appellant enhanced their prices. In the case of transaction value realm the same product can be sold at different prices as per Section 4 of the Central Excise Act, 1944 unless actual additional consideration has been shown to have flown back to the appellants. Appellants in these appeals and in Appeal Nos. E/13720/2014 and E/534/2011 have also not admitted during investigation that they have received any additional consideration. In other appeals on the issue of undervaluation investigation attempted to show the flow back of such additional cash flow through the statements of ceramic tile manufacturer and the statements of Shroffs and Angadias. The amount so worked out has been worked out to be ₹ 38,95,860/- as per the statement of Shri Jayesh Patel, Prop. Of M/s. Kevel mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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