TMI Blog2018 (6) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... in- chief is required to be conducted all the witnesses and thereafter the adjudicating authority has to confirm with the statements recorded is correct and over cross examination of the same to the assessee - in the absence of any cross-examination or corroborative evidence, in support of the statement relied upon, the charge of clandestine removal of goods is not sustainable against the appellant. Under-valuation of goods - Held that:- The demand on account of under valuation of goods to the tune of ₹ 1,03,21,612/- is not sustainable on the basis of merely computer printout recovered during the course of investigation without any corroborative evidence thereof - demand set aside. Appeal allowed - decided in favor of appellant. - APPEAL NOE/58161-58164/2013 - A/62379-62382/2018-EX[DB] - Dated:- 22-3-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G Shakkarwar, Member (Technical) Shri.Jagmohan Bindal Advocate present for the Appellant(s) Shri.Tarun Kumar, AR present for the Respondent(s) Per : Ashok Jindal 1. The appellants are in appeal against the impugned order wherein the demand of duty has been confirmed against them on the charge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of 133 parties whose detail was not compared with dispatched advice to find out that whether goods were actually removed or not. The revenue recorded about 50 statements but none of the officials a of the appellant was confronted with the name of these parties and none of them admitted that the appellant had cleared goods without payment of duty. The respondent got names of the parties but statement of not even single buyer was recorded. There is no attempt to find out movement of goods from the factory premises to these 133 buyers. There is no evidence of payment of consideration by these intended buyers of the appellant. Therefore, it is his submission that the allegation of clandestine removal is based only on computer printout of 133 parties, there is neither any investigation nor evidence of purchase of raw material, movement of finished goods from the factory to premises of buyers, statement of transporters, actually payment of consideration, etc. was produced. Therefore, the allegation of clandestine removal of goods is on the basis of presumption and assumption only. It is his submission that suspicion can never take place of evidence. Therefore, the demand of ₹ 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perused the records. 8. We find that this is second round of litigation and in the earlier round of litigation, this Tribunal observed as under and remand the matter back to the adjudicating authority for fresh adjudication: 12. Our patient hearing of the matter has enabled us to record the submissions of both sides in detail as above. The appellant had never made a prayer to generate print out from the seized computer in its presence in the course of hearing. We have also found that the computer was not disowned by the appellant. We have taken note that statements from different persons have been recorded as is apparent beginning from para 1.4 at page 55 to para 1.50 at page 81 of the impugned order. When those were evaluated it shows that the appellant followed dilatory tactics to avoid early adjudication. It prevented the department to complete adjudication and also to examine the things in proper spirit duly. It is noticeable from the statements recorded that all the particulars were given to the appellant but the appellant no way explained its case. The dilatory tactics apparent from page 60 to page 64 of the impugned order demonstrates that there was no denial of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue, looking to our observations and paying due regard to law, denovo adjudication is to be completed. It would be appropriate for the authority to produce the seized computer before the representative of the appellant on the date of hearing and generate relevant output from the computer for rebuttal by the appellant. The accounts if any generated form the computer is to be compared with audited books of accounts since one of the pleading of the appellant was that its accounts were audited by a firm as was observed by an order dated 10/05/2011 by us. Since there was allegation of maintenance of parallel invoices and parallel account, the authority should also take into consideration of the contents of the seized books and test the allegation in the show-cause notice. We except that at every stage of hearing, the course of natural justice shall be given due weight. The appellant having filed preliminary replies making inordinate delay it should not fail to plead its entire defence and place a summary of pleading in most economical expression on the last day of hearing so that the same shall receive attention of adjudicating authority. A gist of submission to be made shall be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of goods dispatched. In the remand proceedings, the adjudicating authority was directed to cross examine the witnesses whose statements have been relied upon. Despite the directions, the adjudicating authority chose not to give cross examination of the witnesses on the ground that they have never retracted their statements recorded during the course of investigation. With regard to the evidence in the form of statement of transporter, receipt of payment thereof, the adjudicating authority concluded that in case of clandestine removal, no such evidence is available or not, such evidence will be available. 11. We find that in view of the judicial pronouncements, the charging of clandestine removal is not sustainable, in the absence of any corroborative evidence except the statements. Moreover, the statements of the witnesses are to be tested in terms of Section 90 of the Central Excise Act, 1944 which specifies that first examination-in- chief is required to be conducted all the witnesses and thereafter the adjudicating authority has to confirm with the statements recorded is correct and over cross examination of the same to the assessee, as held by this Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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