TMI Blog2020 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed under Section 9D of the Act - In the present case, admittedly no process has been followed. The private documents recovered at the premises remains unrebutted by the department. Also, the allegation of clandestine manufacture and removal in the present case is based on the (a) computer generated sheets and (b) loose papers which cannot be relied upon as evidence, inasmuch there is no indication in the orders passed by the authorities below that the appellant was maintaining computerised records of their production and clearance of goods and whether any other computerised sheets were traced out in the files withdrawn. There is no compliance of Section 36B of the Act. Merely deposit of money at the time of investigation would not amount to acceptance of allegations of clandestine manufacture and removal as alleged by the department - It is well settled law that, payment of money at the time of investigation would be treated as a deposit under protest. Further, the burden to prove allegation of clandestine manufacture and removal is heavily on the department and has to be discharged by producing clinching evidence on record, which has not been discharged by the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een followed. The statements of Shri Basant Kumar Sahu, V.P. (Commercial) of the appellant was recorded on 20.08.2013 and 20.09.2013, under the provisions of Section 14 of the Act. However, the learned Adjudicating Authority has not followed the provisions of Section 9D of the Act, therefore, the said statements cannot be relied upon as an evidence and have to be eschewed from evidence. It is further submitted that the statements dated 20.08.2013 and 20.09.2013, have been recorded under threat and duress. He has relied upon the judgement of Hi-Tech Abrasives Ltd. Vs. CCE C, Raipur, 2018 (362) ELT 961 (Chhattisgarh), wherein the Hon ble High Court of Chhattisgarh held that statements recorded under Section 14 of the Act cannot be relied upon as evidence without following the rigour of Section 9D of the Act. It has been further held that the provisions of Section 9D is mandatory in nature. It is submitted that, similar view has been taken by the Hon ble High Courts and the Larger Bench of the Tribunal as mentioned below:- i. Ambika International Vs. UOI, 2018 (364) ELT 90 (P H) ii. G-Tech Industries Vs UOI, 2016 (339) ELT 209 (P H). iii. Final Order No. 62244-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.6 The learned Advocate further submitted that it is well settled law that, burden to prove allegation of clandestine manufacture and removal is heavily on the department and has to be discharged by producing clinching evidence on record. However, in the present case, as submitted above, the department has miserably failed to adduce evidence on record, in order to prove the allegation of clandestine manufacture and removal of goods. 3.7 It is submitted that, if the duty demand is not sustainable, then the interest and penalty are liable to be set aside on this ground alone. 4. The learned Authorized Representative appearing for the Revenue, reiterated the findings in the impugned order and submitted that the impugned order passed by the learned Commissioner (Appeals) is a well-reasoned order and requires no interference. 5. I have heard the both parties at length and perused the material on record. 6. I find that the search has taken place at the premises of the appellant on 20.08.2013 and during the course of search, the department has found some loose computer printouts and hand written loose sheets showing data in respect of production and clearance of MS Roun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement is required to be admitted in the interest of justice. The rigor of this provision, therefore, could not be done away with by the adjudicating authority, if at all, it was inclined to take into consideration the statement recorded earlier during investigation by the Investigation officers. Indeed, without examination of the person as required under Section 9D and opinion formed as mandated under the law, the statement recorded by the Investigation Officer would not constitute the relevant and admissible evidence/material at all and has to be ignored. We have no hesitation to hold that the adjudicating officer as well as Customs, Excise and Service Tax Appellate Tribunal committed illegality in placing reliance upon the statement of Director Narayan Prasad Tekriwal which was recorded during investigation when his examination before the adjudicating authority in the proceedings instituted upon show cause notice was not recorded nor formation of an opinion that it requires to be admitted in the interest of justice.In taking this view, we find support from the decision in the case of Ambica International v. UOI rendered by the High Court of Punjab and Haryana. XXX XX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Director of the company. Then the only other material left is unverified private document in the form of certain entries made in the note book, seized during search operations. In view of what has been held by the Delhi High Court, with which we are in complete agreement and that the Tribunal has also taken a consistent view in this respect that without recording the statement of the author, the contents of private document would not constitute material, we are left with no legally admissible evidence on record to draw inference of clandestine removal. The inference regarding clandestine removal ought to be outcome of a detailed investigation and consideration of other relevant incriminating material which could be based on the stock of raw material, finished products, use of consumption of electricity, employment of labour and many other relevant material as noticed in the decisions reported in 2014 (309) E.L.T. 411 and 2017 (345) E.L.T. 187 rendered by the High Court of Allahabad and High Court of Jharkhand, respectively. 8.1 I further find that the Hon ble High Court of Allahabad in the case of Continental Cement Company Vs Union of India, 2014 (309) ELT 411 (All.), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri-Del.), affirmed by the Hon ble High Court of Gujarat in the case of CCE Vs Sakeen Alloys Pvt. Ltd., 2014 (308) ELT 655 (Guj) and further affirmed by the Hon ble Apex Court in the case of CCE Vs Sakeen Alloys Pvt. Ltd., 2016 (319) ELT A117 (SC). 9. I further find that merely deposit of money at the time of investigation would not amount to acceptance of allegations of clandestine manufacture and removal as alleged by the department. It is well settled law that, payment of money at the time of investigation would be treated as a deposit under protest, which is held in following judgements:- i. Bayshore Glass Trading Pvt. Ltd. Vs CC, Kolkata, 2002 (148) ELT 1243 (Tri-Kol.) ii. CCE, Lucknow Vs Eveready Industries India Ltd., 2017 (357) ELT 11 (All.) iii. CC, New Delhi Vs Ganesh Trading Co., 2013 (297) ELT 547 (Tri) 10. I further find that burden to prove allegation of clandestine manufacture and removal is heavily on the department and has to be discharged by producing clinching evidence on record, which has not been discharged by the department in the present case. 11. In the light of the above discussions, the impugned order cannot be sustained and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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