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2016 (11) TMI 1221 - CESTAT HYDERABAD

2016 (11) TMI 1221 - CESTAT HYDERABAD - TMI - Demand - clandestine removal of manufactured goods - Toughened Laminated Glass - Insulated Glass Unit - cross examination - principles of natural justice - Held that: - the appellants had requested to cross examine Shri Ram Mohan whose statement is much relied by the Department. The adjudicating authority has failed to grant permission to cross-examine Shri Ram Mohan which is noted in para 20 of the Order-in-Original. The adjudicating authority has o .....

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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 cuts the root of the Department's case. The buyers shown in the sales statement were not questio .....

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ommissioner(AR) for the respondent. (Order per: Sulekha Beevi, C.S. The appellants are manufacturers of architectural glass viz. "Toughened Laminated Glass" and "Insulated Glass Unit" and are registered with the Central Excise Department. On the basis of intelligence gathered that appellants are clearing finished goods without payment of duty, the officers visited the factory premises and recovered documents and also recorded statements. Basing upon such evidences, a show-cau .....

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ppeals) 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 C .....

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ufacture of excess quantity of goods. That therefore 'the allegation that appellant cleared goods clandestinely is totally false. iv. The Department has not examined the transporters of goods alleged to be cleared clandestinely or obtained any proof for receipt of any amount from any person in cash by the appellant. v. The Department has placed much thrust upon the statement given by Shri Ram Mohan, Manager(Finance) and also the figures mentioned in some e-mail messages which Were found in l .....

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any verification with the buyers listed in these statements. 3. The learned counsel relied upon the decision laid in Ambica 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 .....

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llant and adverted to the evidences relied upon by the Department. He submitted that in the email messages recovered from the file, it was seen that the appellant has mentioned two types of invoices. The column in the e-mail is with regard to clearances without payment of duty and what is mentioned as 'tax' in the e-mail is the sales which was accounted in the books of the appellant. He submitted that the computer printouts recovered were not documents retrieved from the computer but the .....

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emails and therefore the same would establish that the appellant has cleared goods without payment of duty. Further that the sales list obtained from the file kept in the factory premises would also show that the appellant has cleared goods without accounting. 5. I have heard both sides. 6. The main evidences on relied by 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 sta .....

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partment, that the figure shown under Commercial is the sales made by the appellant without payment of duty by issuing commercial invoice and the figure shown under Tax is the sales made by the appellant on payment of duty and which is accounted in their books of accounts. Refuting this, the learned counsel for appellant has submitted that though the Department contends that the figure mentioned against tax in these emails is accounted in the appellant's books, it is not so. That such figure .....

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. it is material to note in the statement given by Shri Krishna Kiran Parvathaneni that he requested further time to comment upon the emails and the Department has failed to further examine Shri Krishna Kiran Parvathaneni and obtain explanation with regard to e-Mails which is material. It also needs to be mentioned that the appellants had requested to cross examine Shri Ram Mohan whose statement is much relied by the Department. The adjudicating authority has failed to grant permission to cross- .....

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