TMI Blog2016 (10) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... ained privately by one of the employees. As noted above, since the whole case rests on these private records and statements, it is necessary to get the truth of the matter after following the procedure laid down by the law. The chart submitted by the Revenue in para 10 of their appeal, shows that the private records and the RG-I and other statutory records were taken selectively to allege excess clandestine production. We note that wherever the figures are to their advantage to support the allegation of Revenue those figures were selectively taken in respect of some of the selective days to arrive at a calculation. Certain parameters have been taken as per RG-I and Form-IV, which are statutory records. The percentage yield is taken from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the appeal filed by the main appellant. Certain investigations were carried out by the officers of central excise regarding possible clandestine manufacture and clearance of excisable goods by the main appellant during the period Feb., 2004 to December, 2012. On completion of the investigation, a show cause notice was issued in Jan. 2009 proposing demand of central excise duty and penalties on various persons. The Original Authority adjudicated the case by confirming a duty demand of ₹ 73,50,921/- and imposing penalties of equivalent amount on the main appellant and various penalties on the Directors and employees. He dropped a demand of ₹ 51,58,329/-. 3. The impugned order is assailed on various grounds by the ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authenticity of the private records maintained and gave explanation in this regard, the cross examination of the employees is relevant. Clandestine clearance of more than 5,000 MTs will involve a larger number of buyers. The department located only one buyer. Though inquiries were conducted, no statement or documents were cited or relied upon by the Department even in respect of this buyer. (d) The inquiry made with two transporters were also not relied upon in the proceedings. While dropping the demand of ₹ 51 Lakhs, the original authority held that the production figures for second kiln are only based on presumption and cannot be relied upon. The actual production as per RG-I was apparently admitted as correct. Only 53% of recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the statements are relied upon, the Adjudicating Authority has to follow the provisions of Section 9 D of Central Excise Act, 1944. The settled position of law has been followed by the Tribunal and various High Courts and the observation of the Original Authority in summarily dismissing the request by the cross examination puts the whole proceedings in jeopardy. The Hon ble Punjab Haryana in the case of Ambika International - 2016-TIOL-1238HC P H CX held that in view of the clear legal position in Section 9 D (1) the adjudicating authority cannot straight away rely upon the statement recorded during investigation unless the condition set out therein are fulfilled. For relying on the said statement as relevant for proving the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively taken in respect of some of the selective days to arrive at a calculation. Certain parameters have been taken as per RG-I and Form-IV, which are statutory records. The percentage yield is taken from the private records. We find that there is no consistent approach in calculating the quantification of unaccounted production, if any, by the main appellant. Further, all the purported evidences and claims made by the main appellant have not been discussed and commented upon by the Original Authority. For instance, the opinion of SGS India Pvt. Ltd. regarding the ferrous content of the Ore has not been examined and commented upon. Recovery of 63% has been strongly contested by the appellant on the ground that the Iron Ore purchased by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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