TMI Blog2016 (11) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... as just a statement of facts made by Shri Ram Mohan and not related to his opinion on any matter or on a subject. That the denying of cross-examination of Shri Ram Mohan is not prejudice to the interest of the fair play and principles of justice'. When the Department relied upon the statement of Shri Ram Mohan and his acceptance with regard to emails, the appellants ought to have been given a chance to cross-examine him. The investigation is too shabby and evidences are not sufficient to establish that appellant is guilty of clandestine removal of goods, The figures in e-mail messages relied by department showing column such as Commercial/Tax figures do not tally with the figures in the books of accounts maintained by appellant which cut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals before the Commissioner(Appeals) and vide the order impugned herein, the Commissioner(Appeals) upheld the order passed by adjudicating authority. Hence these appeals. 2. On behalf of the appellant, the contentions submitted can be summarized as under:- i. The entire demand is solely based on computer printouts and no other documentary evidence was found to substantiate the allegation of clandestine clearance of goods. That the computer printouts recovered from the premises of the factory are not admissible in evidence for not following the conditions prescribed in Section 36B of Central Excise Act. ii. That no discrepancy was found in the stock of raw materials or stock of finished goods during the search and this fact was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbica Organics vs. CCE, Surat [2016(334) ELT 97 (Tri. Ahmd.)] to canvass the proposition that computer printouts are not admissible in evidence if the conditions specified in Section 36B are not satisfied. The learned counsel has also relied on various decisions, as below, to put forward the argument that the Department has to establish clandestine clearance with cogent evidence since the said allegation is a serious one. a. Agarvanshi Aluminium Ltd. Vs. CCE, Mumbai [2014(299) ELT 83 (Tri. Mum.] b. Telebrands India Pvt. Ltd. Vs. CC, Mumbai [2016(336) ELT 97 (Tri. Mum)] c. Union of India Vs. Rajendra Bajaj [2010(253) ELT 165 (Bom.)] d. Hissar Pipes Pvt. Ltd. Vs. CCE [2015(317) ELT 136 (Tri. Del.)] e. Bosch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department are three, (i) two email messages, (ii) two sheets of sales statement and (iii) the statement of Shri Ram Mohan, Finance Manager. At the outset, it has to be stated that the officers have found the physical stock of raw materials and finished goods as per the stock statements maintained by the appellant. There was no discrepancy with regard to the stock of raw materials or finished goods as accounted in the statutory records. In the e-mails, which are said to be recovered from the file kept in the factory premises, there are four column as Sales - Commercial Tax - Grand Total . Certain figures are shown under each column. It is the case of Department, that the figure shown under Commercial is the sales made by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority has observed that 'the request for cross-examination is only a dilatory tactics on the part of the appellants to prolong the adjudication process and that it was just a statement of facts made by Shri Ram Mohan and not related to his opinion on any matter or on a subject. That the denying of cross-examination of Shri Ram Mohan is not prejudice to the interest of the fair play and principles of justice'. When the Department relied upon the statement of Shri Ram Mohan and his acceptance with regard to emails, the appellants ought to have been given a chance to cross-examine him. 7. Another evidence relied by the Department is the two pages of sales statement received from the premises of the factory. It is the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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