TMI Blog2022 (3) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... The charge of clandestine removal against the appellant could not be established by the revenue beyond doubt. Therefore the impugned order is not sustainable - appeal allowed - decided in favor of appellant. - Excise Appeal No.10001 of 2022 - A/10281/2022 - Dated:- 17-3-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri Rahul Gajera, Advocate for the Appellant Shri G. Kirupanandan, Superintendent (AR) for the Respondent ORDER The appellant herein M/s. Kelvin Industries is a sole proprietorship firm of Mr. Arvindbhai Babubhai Patel who during the period 2008-09 to 2010-2011 was engaged in the business of manufacturing of excisable product viz. submersible pumps open well pumps falling under CETH 8413 of the CETA, 1985. On 01.07.2010, the officers of department carried out search of the factory premises of the appellant during which they found a USB drive and loose papers from the factory premises and took prints from the said USB drive. The officers of department recorded statement of the appellant under Section 14 of the Central Excise Act, 1944 on various dates viz.1.07.2010 02.07.2010 09.04.2011 in which appellant has admitted to have clandestinely re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal dated 15.11.2021 upheld the Order-In-Original dated 29.01.2021. It is this Order-In-Appeal dated 15.11.2021 which is under challenge in the present appeal. 2. Shri Rahul Gajera, Learned Counsel for the Appellant assailed the impugned order mainly on two grounds, firstly he submits that entire case is based on the statements recorded under section 14 of the Central Excise Act, 1944 which are not relevant and hence not admissible into evidence and otherwise also not reliable piece of evidence. He takes me through all such statements reproduced in the show cause notice in which it is stated that computer printouts taken from the USB drive were shown to the suppliers and buyers of goods who have confessed to have entered into cash transactions with the appellant. He further points out that all the statements of the buyers are almost identical and almost all have stated that they do not have any records of goods purchased by them from the appellant or have any records of transportation of the goods. He submits that in such circumstances, no reliance can be placed on the said stereotype statements of suppliers of raw material and buyers of finished goods, particularly when none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were not taken out on that day and it was only after 40 days thereafter the USB drive was again opened in the factory computer and prints were thereafter taken out under panchnama dated 10.08.2010. He submits that there absolutely no reason or justification coming forth from this conduct of officers of department in keeping the pendrive with them for 40 long days before prints were taken from the factory premises of the appellant. The officers of department have not identified or recorded statement of the person who made entries in the USB drive and further cross-examination of the panchas was not given to the appellant though specifically requested by the appellant. Hence no reliance can be placed on such computer print outs obtained from the USB drive in respect of which even the conditions laid down in section 36B (2) of the Central Excise Act, 1944 have not been fulfilled by the department. One of the conditions is that the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PR. Commissioner of Cus. ICD, TKD (Import) New Delhi 2019 (368) ELT 710 (Tri. Del.) Trade Annai Spinning Mills Vs. Commissioner of C. Ex., Salem 2007 (219) ELT 966 (Tri. Chennai) Kanungo Co. Vs. Collector of Customs, Calcutta Others 1983 (13) ECI 1486 (SC) Patel Engineering Ltd Vs. UOI 2014 (307) ECI 862 (Bom.) Surjeet Singh Chhabra Vs. UOI 1997 (89) ELT 646 (SC) Suman Silk Mills Pvt Ltd Vs. Commissioner of Cus. C. Ex., Baroda 2002 (142) ELT 640 (Tri Mum) Anil Das Vs. Commissioner of Customs, New Delhi 2002(141) ELT 135 (Tri. Del) Commissioner of C. Ex, Surat I Vs. N. D. Textiles 2004 (168) ECI 381 (Tri. Mumbai) 3.1 As regards, the computer print outs taken from USB drive showing details of sale and purchase transactions, Learned AR for the Revenue submitted that the same were taken in presence of the appellant and hence its authenticity cannot be doubted. He further submits that computer print outs is not the only evidence but there are statements of the appellant which are not retracted. He relied upon the following decisions in this regard: Shri Ulaganayagi Ammal Steels Vs. Commissioner of Central Ex., Trichy 2008 (231) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 17 . There is no justification for jettisoning this procedure, statutorily prescribed by plenary Parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise Officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word shall in Section 9D(1), makes it clear that, the provisions contemplated in the sub-section are mandatory. Indeed, as they pertain to conferment of admissibility to oral evidence they would, even otherwise, have to be recorded as mandatory. 18 . The rationale behind the above precaution contained in clause (b) of Section 9D(1) is obvious. The statement, recorded during inquiry/investigation, by the Gazetted Central Excise Officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutorily prescribed by plenary Parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the CCE, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof. 23 . Reliance may also usefully be placed on Para 16 of the judgment of the Allahabad High Court in C.C.E. v. Parmarth Iron Pvt Ltd.,2010 (260) E.L.T. 514 (All.), which, too, unequivocally expound the law thus : If the Revenue choose (sic chose?) not to examine any witnesses in adjudication, their statements cannot be considered as evidence. 24 . That adjudicating authorities are bound by the general principles of evidence, stands affirmed in the judgment of the Supreme Court in C.C. v. Bussa Overseas Properties Ltd.,2007 (216) E.L.T. 659 (S.C.), which upheld the decision of the Tribunal in Bussa Overseas Properties Ltd. v C.C.,2001 (137) E.L.T. 637 (T). More so, because, duty amount which was admitted by the deponents during investigation, has been substantially revised to an entir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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