TMI Blog2017 (7) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... landestine removal of goods beyond doubt - appeal dismissed - decided against appellant. - E/709-710/2012-SM - A/61270-61271/2017-SM[BR] - Dated:- 17-7-2017 - Mr. Ashok Jindal, Member (Judicial) Ms. Surbhi Sinha, Advocate for the Appellant Shri G.M. Sharma, A.R. for the Respondent ORDER Per: Ashok Jindal Appellants are in appeal against the impugned order wherein the demand of duty has been confirmed along with interest against the main appellant and penalty has been imposed on both the appellants. 2. The facts of the case are that appellants are manufacturers of expandable polystyrene resin/ granules (EPB beads) and waste (fines). On the basis of intelligence, search was conducted in the premises of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36B of Central Excise Act, 1944 as the procedure for the same has not been followed. To support his contention she relied upon the following decisions:- (a) Ambika Organics Vs. CCE, Surat - 2016 (334) ELT 97 (Tri. Ahmd.) (b) Commissioner Vs. Ambica Organics - 2016 (334) ELT A67 (Guj) (c) Shivam Steel Corporation Vs. CCE, BBSR - 2016 (339) ELT 310 She further submitted that no statement of Shri M. Janganbabu was recorded, therefore sole reliance on the data retrieved from a pen drive is not sustainable. The department is only relying on the statement of Shri Narendra Gupta, Director/co-appellant who in his reply to the show cause notice has stated that his statement is not a voluntary and the words were put in his mou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sustainable in the light of the decision in the case of CCE Vs. Nandeshwari Packing - 2009 (235) ELT 69. She also relied on the decision of the Hon ble Apex Court in the case of CCE vs. Bhalla Enterprises - 2004 (173) ELT 225 (SC) . She further submitted that as no demand is sustainable hence no penalties are imposable. 4. On the other hand, ld. AR opposed the contention of the ld. Counsel and submits that though the pen drive recovered from Shri M. Jaganbabu but the printouts from the said pen drive was taken on the same day in the presence of panchas and Panchnama was drawn and these printouts were signed by the panchas. The same has not been disputed by the appellant. Moreover, the statement of the appellant was recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in reply to the show cause notice which was filed only on 21.03.2011 whereas the said statement was recorded on 18.01.2007. The said retraction/ denial of the statement is not sustainable being after such a long period. Moreover, before reply to the show cause notice another statement of Shri Narendra Gupta was recorded on 15.12.2008 and in that statement also Shri Narendra Gupra has not retracted the statement recorded on 18.01.2007. Therefore, the statement of Shri Narendra Kumar dated 18.01.2007 is an admissible statement and on the basis of the said statement and admission made by Shri Narendra Kumar, the computer printouts has been relied on. As the computer printouts were taken during the course of search and in the presenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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