TMI Blog2023 (8) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... e two pen drives and the data contained therein? - HELD THAT:- It is on record that the entire duty demand, except for 01-07-2014 to 16-07-2014, is based on the two pen drives recovered on the date of search on 17.07.2014, resumed from the shirt pocket of Shri. Sushil Kumar Roy. The computer printouts have been taken on three dates, namely, 17-07-2014, 28-11-2014 and 11-03-2015. The Forensic Examination of both the pen drives was conducted on 05-072021, though without the presence of the Appellants. A perusal of this report reveals that no printouts were taken from the two pen drives on any of the above three dates. The Appellants stated that they have made detailed submission about this Forensic Report in their further submissions dated 27-05-2022, but the same have not been taken into account by the adjudicating authority - It is observed that this Forensic Report was obtained by the department from their own expert and hence it became part of the adjudication proceedings. It is observed that the entire duty demand is based upon the computer printouts taken from these two pen drives, The Forensic Report questions the very existence of the computer printouts and the adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be received with caution. It is observed that pen drive is not a substantial evidence in the absence of corroborative evidence. The Appellants contended that corroborative evidences such as consumption of unaccounted materials, production of unaccounted finished goods, extra labour, extra consumption of electricity, clearance of goods from the factory, receipt of cash on account of alleged clandestine sales are required to substantiate clandestine clearance. We observe that all the above factors are conspicuous by its absence in the present proceedings. The investigation has not established the availability of any of the above mentioned corroborative evidences, to substantiate their allegations. It is observed that JBIL-III and JBIL-IV have vehemently denied ownership of these two pen drives and the authenticity of the data therein. Only two statements of Shri Sushil Kumar Roy, Associate (Commercial) of JBIL-III and one statement of Shri Kanhaiya Agarwal, weighbridge in-charge of JBIL-III were recorded. The statement of Shri Sushil Kumar Roy regarding clandestine clearances in respect of entries in the computer printouts was not categorical - There was no categorical ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t duly came on record that various statements recorded from the witnesses were not of voluntary nature but were recorded after putting undue pressure upon the witnesses the same could not be admitted in evidence by the Adjudicating Authority. The same clearly lost its evidentiary value. Once these statements are excluded from evidence no reliance could be placed on the computer printouts and other evidences - the statements recorded cannot be relied upon to demand duty, unless the procedure set out in Section 9D are followed. None of the statements recorded in this case conclusively establish any clandestine clearance. During cross examination all of them retracted their earlier statements. Hence, the evidentiary value of the statements have to be examined. The corroborating evidence relied upon by the Revenue in this case is the data recovered from the pen drives. As discussed, the data available in the pen drives cannot be relied upon as they have not satisfied the conditions set out in Section 36B of the Central Excise Act. Thus, it is observed that there is no corroborative evidence brought in by the Revenue to substantiate the retracted statements. In view of the discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as conducted from any of the transporters to the same effect. There is no scope for procurement of coal as a raw material in clandestine manner. It is observed that unless JBIL III and JBIL IV have received the quantities of raw materials mentioned in the two charts above, they could not have manufactured finished goods and removed the same clandestinely. It is observed that there is absolutely no evidence on record that either JBIL III or JBIL IV received proportionate quantities of raw materials in clandestine manner or without accounting and used the same to manufacture unaccounted finished goods and clandestinely removed the same. No investigation was done to ascertain the procurement of raw materials required for manufacture of such huge quantities of finished goods and its subsequent clandestine clearance. In the case of Mohan Steels Ltd. Vs. Commissioner of Central Excise, Kanpur [ 2004 (7) TMI 530 - CESTAT, NEW DELHI] it has been held that unless department produces evidence, which should be clinching, in the nature of purchase of inputs and sale of the final product demands cannot be confirmed based on some note books. In the absence of any evidence of procuremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the negative. The demand of duty confirmed in the impugned order against JBIL III and JBIL IV are not sustainable. Since the demand of duty is not sustainable, the demand of interest and imposition of penalty against the Appellants JBIL III and JBIL IV are also not sustainable. As there is no evidence against the Director, the penalty imposed on him is not sustainable. Accordingly, the demands of duty and penalties related to the aforementioned three Appellants in the impugned order are set aside. Appeal allowed. - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri K. K. Anand, Advocate Shri S.K. Mahapatra, GM for the Appellant Shri S. Mukhopadhyay, Authorized Representative for the Respondent ORDER Three appeals have been filed against the Impugned Order No. 47/2022/CE dated 21.07.2022 passed by the Additional Director General (Adjudication), Directorate General of GST Intelligence, (Adjudication Cell), New Delhi. The Impugned Order passed by the adjudicating authority is furnished below: In respect of M/s.Jai Balaji Industies Ltd., Unit III. (i) I confirm the demand of Central Excise Duty amounting to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Laxmi Narain Metallic Pvt. Ltd., (i) I confiscate the cash amount of Rs.41,40,000/- (Rs. Forty One Lakhs Forty thousand only) in terms of the provisions of Section 121 of the Customs Act, 1962 as made applicable to like matters of Central Excise vide Notification No. 68/63 dated 04.05.63 as amended and issued under Section 12 of the Central Excise Act, 1944. (ii) I impose penalty of Rs.4,00,000/- (Rupees Four Lakhs) on them in terms of the provisions of Rule 26 of the Central Excise Rules,2002. Other Noticees (i) I impose penaty of Rs.5,00,00,000/- Rupees Five Crores) on Shri Ajit jajodia under Rule 26 of the Central Excise Rues, 2002. (ii) I impose penalty of Rs.1,00,000/- (Rupees One Lakh) on Shri Girish Tikmani under Rule 26 of the Central Excise Rules, 2002. 2. Aggrieved against the impugned order, M/s Jai Balaji Industries Unit III(hereinafter referred as JBIL III/Appellant), Jai Balaji Industries Unit IV(hereinafter referred as JBIL IV/Appellant) and Shri Aditya Jajodia (herein after referred as Appellant) have filed these three appeals. Since all three appeals emanated from the same impugned order, they are taken up together for decision. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pink weighment slips and slip pad as recovered from JBIL-III, he stated that weight of the material which has to be cleared without invoices was being mentioned in these pink weighment slips which was later handed over to Shri. Sushil Kumar Roy. 4.4 On 17.07.2014, a search was also conducted at the Head Office of Jai Balaji Group in Kolkata. The officers took out printouts of some of the e-mails from company s mail ID handled by Shri Diptendu Samui, who was working as Accounts officer. Two pen drives were recovered from the possession of Shri Anil Kumar Agarwal. The officers also resumed two laptops under a Panchnama. 4.5 A statement of Shri Diptendu Samui, Accounts Officer, was recorded wherein he was shown certain messages retrieved from his mobile phone. 4.6 on 17.07.2014, DGCEI officers also conducted search in the premises of JBIL-IV and recovered few pads containing pink slips and other documents, under a Panchnama . 4.7 A statement of Shri Raghunath Jhunjhunwala, weighbridge in-charge of JBIL IV was recorded, wherein he, inter alia, explained the procedure of weighment of raw materials and finished goods. He uses a pink slip for final weighment. He was sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir Director Shri Aditya Jajodia. 5. A Show Cause Notice dated 23.04.2015 was issued to all three Appellants and some others concerned with the duty evasion. In the Notice, duty has been demanded mainly on the basis of the printouts retrieved from the pen drives recovered on 17.07.2014. Duty has been demanded on Billets as well as on mixed sales. The entire duty demand except mixed sales for the period 01-07-2014 to 16-07-2014 was based on the printouts retrieved from the 4GB pen drive which was recovered from the pocket of Shri. Sushil Kumar Roy. The demands made in the Notice in respect of JBIL III and JBIL IV are tabulated as below: JBIL-III Amount in Rs. Year Value Central Excise Duty payable. 2010-11 34,08,53,747 3,51,07,936 2011-12 57,71,79,937 5,94,69,656 2012-13 203,07,63,521 25,10,02,370 2013-14 28,79,12,957 3,55,86,042 2014-15 (upto 16-07-2014) 26,14,85,272 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ives can be relied upon as evidence to demand duty only when the conditions mentioned in Sub Section (2) of Section 36B are satisfied. The department did not identify any computer in which the information was allegedly fed by JBIL III or JBIL IV. The pen drive is a floating device susceptible to tampering and alterations and therefore such evidence has to be received with caution as held by the Hon'ble Supreme Court in the case of Tukaram S. Dighole Vs Manikrao Shivaji Kokate, reported in (2010) 4 S.C (329) (iv) Pen drive is not a substantial evidence in the absence of corroborative evidence such as consumption of unaccounted materials, production of unaccounted finished goods, extra labour, extra consumption of electricity, clearance of goods from the factory, receipt of cash on account of alleged clandestine sales etc. All the above factors are conspicuous by its absence in the present proceedings. It has been held by the Hon'ble Gujarat High Court in the case of Principal Commissioner of CGST Central Excise Vs. Shah Foils Ltd reported in 2020 (372) ELT 632 (Guj), that pen drive data is not substantial evidence in the absence of the aforementioned factors being pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aurav Jajodia to find out the ownership of the said pen drive. As regards the 8GB pen drive, merely because Shri. Sushil Kumar Roy was working on one of the computers and the said pen drive was attached with that computer, it does not mean that the said pen drive and the data contained therein belonged to JBIL. Further, Shri. Gautam Banerjee was also working on the same computer, but his statement was never recorded. He was not even summoned during the course of investigation. Further, merely because the computer printouts contained the data of recorded clearances also, it does not mean that where no invoice number was written against a particular entry, that established clandestine clearance of the goods mentioned therein by JBIL III or IV. Such presumption is not acceptable in the eyes of law. The onus to prove that these two pen drives belonged to JBIL III and contained accounted for and unaccounted for clearances of various goods was squarely on the Revenue. Since the evidence on record does not establish that these two pen drives were owned by JBIL III, no reliance can be placed on any information contained therein, as the said two pen drives do not fulfill the requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metal, whose names were mentioned in the pink slips as the receivers of the alleged clandestinely cleared four consignments of Pig Iron on 16.07.2014. The premises of M/s. Manoj Metal was never searched. The premises of the other buyer, namely, Shri Girish Tikmani, who was the director of M/s. Laxmi Narain Metalic Pvt Ltd was searched only after more than seven months later on 22-02-2015 and a statement of Shri Girish Tikmani was recorded. He was never confronted with the said three pink slips. He was not confronted even with the computer printouts. Hence, the findings of the adjudicating authority at Para 25 of the impugned order that the pink slips were only prepared where the goods were cleared without invoices, is not supported by any evidence and hence it cannot be accepted. (ix) The adjudicating authority has relied upon report No. 14 dated 16.06.2014 containing Dispatch detail 1 and dispatch detail-2 and has held that the figures mentioned in Despatch-2 pertained to the clandestine clearance of 16-07-2014 i.e. a day prior to the search, whereas the details given in dispatch-1 pertained to the clearances of the same day which were cleared on payment of duty. Both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BIL IV. If JBIL III would have clandestinely cleared 26.53 MT of HPTM Cutting Pipes on 16.07.2014, the same would have been available on the very next day in JBIL IV. But, no effort was made by the investigation officers to corroborate their allegations of clandestine clearance. Similarly, JBIL III allegedly cleared Rubber weighing 73.42 MT on 15-07-2014 to JBIL IV. No enquiries were conducted by DGCEI in this regard either on 17-07-2014 or thereafter. Similar is the case with earlier dates. If the case of DGCEI is treated to be true, even on 15-07-2014 JBIL III cleared 16 consignments of Pig Iron weighing 251.33 MT to Girish Tikmany, Pawan Bansal, Deepak Dalmia, Manoj Metal Udyog and Saran Alloys Pvt Ltd and two consignments of Runner weighing 73.42 MT to JBIL IV but no investigation at all were made to that effect from the alleged recipients of Pig Iron from JBIL IV where simultaneous search was conducted on 17-07-2014. The details of said consignments are given in a tabular form as under:- Sl. No. Name of the party Item/Product Vehicle No. Quantity 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GRAND TOTAL 321.75 (xi) If we take into account the alleged clandestine clearance for the last sixteen days prior to the search of the unit, JBIL III was alleged to have cleared 129 consignments without payment of Central Excise duty during the said short period of time out of the total 743 consignments which were cleared during this period from 01.07.2014 to 16.07.2014. Even prior to the said period, they were allegedly clearing the goods without payment of Central excise duty during the last more than four years i.e. w.e.f. 1-4-2010, on regular basis. If such allegations are accepted to be true, it was the bounden obligation on the part of the investigating officers to have intercepted some consignments which were allegedly being cleared without payment of central excise duty. (xii) The duty demand of Rs.96,45,018/- from JBIL III and Rs. 14,62,149/- from JBIL IV is not sustainable on the GR Slag generated involuntarily during the process of manufacture. Even otherwise, GR Slag is exempt from Central Excise Duty in terms of Sl No. 6 of Notification 4/2006-CE dated 01.03.2006, superseded by Notification 12/12-CE dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 5137141 102743 51371 5291255 100 MS 500 64.380 2,253,300 225,330 4,507 2,253 232,090 100 CRS 131.370 4,597,950 459,795 9,196 4,598 473,589 130 52Cr4MO2V 55.450 1,746,675 174,668 3,493 1,747 179,908 130 55SI7 359.180 13,821,444 1,573,499 31,470 15,735 1,620,704 130 CRS 536.210 18,954,901 2,068,557 41,371 20,686 2,130,613 130 MS 3308.080 98,771,773 10,086,414 201,728 100,864 10,389,006 130 MS 500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by documentary evidences. However, a perusal of Section 9D of the Central Excise Act, 1944 clearly establishes that unless a person who has made the statement is examined as a witness before the Adjudicating Authority, no reliance can be placed on any statement recorded under section 14 of the Central Excise Act. Any statement recorded under Section 14 of the Central Excise Act could be admitted in evidence only after the process of examination and cross examination is completed as provided under Section 9D. For undertaking this exercise, it is not necessary that a person should have retracted from his statement. If the argument of the Adjudicating Authority is accepted, then the provisions of Section 9D would become otiose. This cannot be the intention of the legislature. (xviii) The Tribunal in the case of Ambica Organics Vs. CCE Customs, Surat-1, reported as 2016 (334) ELT 97 (Tri. - Ahmd), was dealing with a case where the entire case of clandestine removal was based upon some computer prints out and certain statements of buyers. The party therein requested for cross examination of 30 persons but Commissioner (Appeals) allowed cross examination of only four persons wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 9D of the Central Excise Act was not followed while adjudicating the case by the Adjudicating Authority, held in clear terms that unless the procedure laid down under Section 9D of the Central Excise Act is followed in letter and spirit, no statement including the statement of Director which was of inculpatory in nature can be relied. (xxi) The investigation officers did not conduct any investigation either from the mine owners or from the Railways or from any transporter to substantiate their allegation that JBIL III and JBIL IV have procured any unaccounted raw material from them or transported it without invoice. The Railways being a government organization, there was absolutely no scope for transportation of any unaccounted raw material. The entire quantity of Iron Ore and other minerals products/raw materials were transported through valid railway receipts and only a few raw materials were transported through trucks or similar transport vehicles. There was absolutely no investigation from any supplier of raw materials that they ever sold the raw materials either to JBIL III or JBIL IV without invoices and received any cash from them. Similarly, no investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JBIL under Fuel Supply Agreement (FSA) like Iron Ore, Coal. Coal is mostly transported through Railways. Therefore, there is no scope for procurement of coal as a raw material in clandestine manner. (xxiii) With regard to JBIL IV, they have the facility of Coke Oven Plant. In Coke Oven Plant, the basic raw material is coking coal and the finished product is coke. JBIL IV have imported coking coal for the purpose of production of coke in coke oven Plant. Sometimes JBIL IV have also directly imported Coke for the purpose of production of Pig Iron in their Blast Furnace Plant. Coke is the basic raw material (Fuel) for the purpose of production of Pig Iron. During the alleged period of clandestine removal, JBIL IV have imported the coking coal and coke for the production of Pig Iron. No case has been made out that JBIL IV had procured various raw materials including coke in clandestine manner. (xxiv) The Adjudicating Authority has negated this very vital submission on an untenable ground at Para 28 of the impugned order by holding that during the course of search, some messages were found in the in-box of the mobile phone of Shri Diptendu Samui, Accounts officer, which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take clandestine removal of such a huge quantity of finished goods, JBIL III would have indulged in cash transactions of around Rs. 700 Crores during a period of little over four years. There is not even an iota of evidence brought by the investigation to this effect. (xxvi) JBIL III IV in their further submissions dated 27.05.2022 before the adjudicating authority cited the Final Order No. 75583-75585/2020 dated 12-11-2020 passed by this Tribunal in JBIL III s own case. In this case also, duty was demanded on the basis of some data relating to unaccounted transactions recorded in external Hard Drives recovered from the secret office of one of their buyers namely M/s .Shree Parasnath Re-Rolling Mills Ltd, Durgapur (M/s.SPMRL). Printouts of the contents of the hard discs were taken in the presence of authorized signatory of M/s. SPRML and independent witnesses. Certain statements were recorded. Duty was demanded from JBIL III alleging that during the period 01-02-2012 to 25-122012 they have cleared 13683.05 MT of M.S. Billets to M/s. SPRML without payment of duty. This case was made out on the basis of printouts taken from hard disc seized from the secret office of M/s. SP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Raw materials, in excess of that contained as per the statutory records; b. Instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty. c. Discovery of such finished goods outside the factory. d. Instances of sales of such goods to identified parties. e. Receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; f. Use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validity cleared on payment of duty. g. Statements of buyers with some details of illicit manufacture and clearance; h. Proof of actual transportation of goods, cleared without payment of duty i. Links between the documents recovered during the search and activities being carried on in the factory of production; etc. It is submitted that the facts and circumstances of the present appeal are similar to that of the case wherein the Final Order No.75583-75585/2020 was passed by this Tribunal. No appeal has been preferred by the department against this order meaning thereby that the department has accepted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order has not taken into consideration the submissions made by him. He was never summoned with regard to the present proceedings. Therefore, the findings of the Adjudicating Authority in the impugned order are factually incorrect. Without prejudice to the above submissions, he stated that there is no evidence on record to show that he was in any way concerned with transporting, removing, depositing, keeping, concealing, selling and purchasing of excisable goods, which he had knowledge, or reason to believe that they were liable for confiscation. JBIL III and IV have already made detailed submissions that the duty demand on both the units is not sustainable on various grounds. He reiterated the said grounds and contended that since no duty demand is sustainable against JBIL III and IV, the question of penal action against him does not arise at all. Accordingly, he prayed for setting aside the penalty imposed on him. 7. The Ld. A.R. stated that the data recovered from the two pen drives clearly establish clandestine clearance of the goods by JBIL III and JBIL IV. This is corroborated by the statements from Shri. Sushil Kumar Roy, Associate (Commercial) and Shri. Kanhaiya Agrw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons made by Revenue and the submissions made by the Appellants to counter the findings of the adjudicating authority in the impugned order, we frame the following questions: 10. The issues to be decided in this appeal are: (i) Whether evidences available on record substantiate that the Appellants are the owners of the two pen drives and the data contained therein? (ii) Whether the computer printouts taken from the pen drives recovered during the search can be relied upon as evidence to demand duty? (iii) Whether the conditions mentioned in Section 36B has been followed in this case or not, to rely upon the computer printouts as evidence? (iv) Whether the procedure as set out in Section 9D of the Central Excise Act, !944 was followed in this case or not? If not followed, then whether the statements recorded under Section 14 of the Central Excise Act, 1944 can be relied upon to demand duty ? (v) Whether the statements not retracted within a reasonable time, but retracted at the time of cross examination, has any evidentiary value? (vi) Whether the allegations of clandestine clearance of finished goods by JBIL III and JBIL IV are sustainable without any correspond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes any printouts were taken. The Appellant further stated that various files pertained to various individuals with whom the JBILIII or JBIL IV did not have any connection even remotely, were found in the Report dated 05.07.2021. We observe that the adjudicating authority has not given any findings on this Report. We observe that the entire duty demand is based upon the computer printouts taken from these two pen drives, The Forensic Report questions the very existence of the computer printouts and the adjudicating authority has not given any finding on this report. Not giving any finding on the Forensic Report dated 05.07.2021 would only lead to the conclusion that the said Report did not support the case of the department and hence the adjudicating authority ignored the same and has not give any finding on it. 11.1 We observe that one pen drive was recovered from the pocket of Shri. Sushil Kumar Roy and the other one was attached with the computer where he was working. The pen drive is a floating device. Just because it is recovered from his shirt pocket does not mean that he is the owner of all the data available therein .It very clear from the statement dated 17.07.2014 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a printed material produced by a computer (hereinafter referred to as a computer printout ), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer printout shall be the following, namely : (a) 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 having lawful control over the use of the computer; (b) during the said period, there was regular supply to the computer in the ordinary course of the said activities, information of the kind contained in the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge and belief of the person stating it. (5) For the purposes of this section.- (a) Information shall be taken to he supplied to a computer if it is supplied thereto in any appropriate form and whether it is no supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.- for the purposes of this section.- (a) computer means any device that receives, stores and processed data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about its authenticity and accuracy has to be more stringent as compared to other documentary evidence. 12.2 We observe that pen drive is not a substantial evidence in the absence of corroborative evidence. The Appellants contended that corroborative evidences such as consumption of unaccounted materials, production of unaccounted finished goods, extra labour, extra consumption of electricity, clearance of goods from the factory, receipt of cash on account of alleged clandestine sales are required to substantiate clandestine clearance. We observe that all the above factors are conspicuous by its absence in the present proceedings. The investigation has not established the availability of any of the above mentioned corroborative evidences, to substantiate their allegations. 12.3 It has been held by the Hon'ble Gujarat High Court in the case of Principal Commissioner of CGST Central Excise Vs. Shah Foils Ltd reported in 2020 (372) ELT 632 (Guj), that pen drive data is not substantial evidence in the absence of the aforementioned factors being present. The relevant part of the order is reproduced below: 6.8 Being aggrieved with the above O-I-O, the assessee and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus in both cases i.e. Bombay Sales and Smi Cash Sales apart from the statements which are even contradictory no corroborative evidence. The Appellant has placed reliance upon various judgments to canvas their point that in absence of corroborative evidence no demand can be made. We find that no corroborative evidence has been stated in show cause notice in the form of receipt of unaccounted raw material, transportation of unaccounted such raw material to SFL factory, consumption of unaccounted raw material, production of unaccounted finished goods, production record of unaccounted finished goods, use of consumables, extra labour and excess consumption of electricity, clearance of goods from the factory, receipt of cash from even a single person on account of alleged clandestine sale. We also find that the revenue did not undertake any investigation at the end of M/s. SFPL from where the clearance of goods has taken place. When the brokers had stated that the delivery was taken from Vasai Godown which was under the ownership of M/s. SFPL, the officers should have made investigation. Thus in such circumstances, the demand on account of clandestine removal cannot be made. In ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T), Resha Wires Pvt. Ltd. v. CCE, 2006 (202) E.L.T. 332 (T), Atlas Conductors v. CCE, 2008 (221) E.L.T. 231 (T), Vishwa Traders Pvt. Ltd. v. CCE, 2012 (278) E.L.T. 362 (T), CCE v. Vishwa Traders Pvt. Ltd. 2013 (287) E.L.T. 243 (Guj.), CCE Swati Polyester, 2015 (321) E.L.T. 423 (Guj.), Commissioner v. Swati Polyester - 2015 (321) E.L.T. A-217 (S.C.), Flevel International v. CCE, 2016 (332) E.L.T. 416 (Guj.), CCE v. Renny Steel Casting (P) Ltd., 2012 (283) E.L.T. 563 (T), CCE v. Akshay Roll Mills Pvt. Ltd., 2016 (342) E.L.T. 277 (T), Industrial Filter Fabrics Pvt. Ltd. v. CCE, 2014 (307) E.L.T. 131 (T), CCE v. Birla NGK Insulators Pvt. Ltd., 2016 (337) E.L.T. 119 (T), CCE v. Ganesh Agro Steel Industries, 2012 (275) E.L.T. 470 (T), UOI v. MSS Foods Products Ltd., 2011 (264) E.L.T. 165 (P H), CCE v. Sree Rajeswari Mills Ltd., 2009 (246) E.L.T. 750 (T), CCE v. Sree Rajeswari Mills Ltd., 2011 (272) E.L.T. 49 (Mad.), Shardha Forge Pvt. Ltd. v. CCE, 2005 (179) E.L.T. 336 (T), Arya Fibres Pvt. Ltd. v. CCE, 2014 (311) E.L.T. 529 (T), TGL Poshak Corporation v. CCE, 2002 (140) E.L.T. 187 (T). In view of said judgments we find that the charges of clandestine removal on the basis of pen driv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of Shri Sushil Kumar Roy regarding clandestine clearances in respect of entries in the computer printouts was not categorical. He had stated that in the computer printouts, when tax invoice number was not given some of them might be without bill despatches because in some of such cases bills might have been issued from JBIL IV but entries were made in the pen drives only to keep account. In his statement, Shri. Sushil Kumar Roy only says that the entries without tax invoice number might be meant for despatches without bill. There was no categorical admission by him. He also says that inrespect of some of such cases bills might have been issued from JBIL IV, but entries were made in the pen drives only to keep account. This statement was given on the date of search om 17.07.2017. However, we observe that this averment of Shri Sushil Kumar Roy was not probed further. 12.6. In support of their contention that the computer printouts resumed from the pen drives is not an admissible evidence, unless the mandatoty procedure prescribed in Section 36 B is followed, the Appellants cited various decisions. In the case of Ambica Organics Vs Commissioner of C.Ex Cus, Surat-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these person stated that they received the textile auxiliary chemicals without invoice and against cash payments. Statement of these 30 persons (most of them Processors) are against their own interest as it makes them liable for penal action for purchasing dutiable goods on which duty was not paid. However, no show cause notice is given to these persons who have admitted to have received the impugned goods without bills. This fact gives credence to the allegations made by the appellant that the statements were not voluntary. It is apparent that the thirty statements have been recorded under a promise that no action shall be taken against them. Under these facts and circumstances, the evidentiary value of these thirty statements is considerably weakened. However, the solid evidence in the form of electronic records (USB Drive) and the computer printout from the same are sufficient to nail the appellant. 9 . The Commissioner (Appeals) observed that the evidence in the form of electronic record (USB drive) the computer printout are strong evidence to establish the clandestine removal of the goods. It is seen that the said printout of the data in the USB drive contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is derived from information supplied, to the computer in the ordinary course of the said activities. Sub-section (4) of Section 36B requires issue a certificate in this behalf by a person occupying the responsible official position in relation to the operation of the relevant device or the management of the relevant activity (whichever is appropriate) shall be evidence in any matter stated in the certificate and for the purpose of the sub-section, which shall be sufficient for a matter to be stated to the best of the knowledge and the belief of the persons stating it. In the present case, the data was not stored in the computer. It is stated that the computer expert accompanied with the Central Excise officers had taken the printout from the USB drive by connecting to the computer. The officers had not obtained any certificate as required under Section 36B of the said Act. It is also noted that none of the conditions under Section 36B(2) of the Act, 1944 was observed. In such situation, it is difficult to accept the printout as an evidence to support the clandestine removal of the goods. It is noted that the requirement of certificate under Section 36B(4) is also to substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was in operation properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities. Ld. Sr. Counsel has argued that the above conditions were not fulfilled in respect of the computer printout taken from the personal computer of Shri Sampath Kumar. It appears from the statement of Shri Sampath Kumar and the averments in the memorandum of appeal that it is an admitted fact that Shri Sampath Kumar was the person having lawful control over the use of the computer. The computer was not shown to have been used regularly to store or proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply with the conditions of Section 36B of the Act in respect of relying upon this computer printout. There is no adequate material available on record to establish the clandestine removal of goods. Therefore, the demand of duty solely on the basis of these materials cannot be sustained. Hence, as the clearance value was within the SSI exemption, the confiscation of the goods cannot be sustained. So, the imposition of penalties are not warranted 12.7. In the case of Anvar P.V. Vs. P.K. Basheer reported at 2017 (352) ELT 416 (SC), The Hon ble Supreme Court has held as under: 13 . Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 16 . Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence. 17 . The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India. 12.8. Section 65B of Evidence Act is parimateria with Section 36B of the Central Excise Act, 1944. From the above observation of the Hon'ble Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded over to Shri Sushil Kumar Roy. This statement was later retracted y him during cross examination before the adjudicating authority. 13.3 On 17.07.2014, a search was also conducted at the Head Office of Jai Balaji Group in Kolkata. The officers took out printouts of some of the e-mails from company s mail ID handled by Shri Diptendu Samui, who was working as Accounts officer. Two pen drives were recovered from the possession of Shri Anil Kumar Agarwal. The officers also resumed two laptops under a Panchnama. 13.4 A statement of Shri Diptendu Samui, Accounts Officer, was recorded wherein he was shown certain messages retrieved from his mobile phone. In the present proceedings, there were only two messages showing purchase of scrap of only 15 MT and 10 MT, totally 25 M.T of scrap purchased in cash. Shri Diptendu Samui in his cross examination had categorically stated that both the above entries of purchase of 25 M.T. of scrap was accounted for in their books of records. 13.5 A statement of Shri Raghunath Jhunjhunwala, weighbridge in-charge of JBIL IV was recorded, wherein he, inter alia, explained the procedure of weighment of raw materials and finished goods. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenience if he stated as mentioned in the statements. (vii) That despite the entries in the pen drives about clearance of any consignments there was possibility of like order getting cancelled, the vehicle developing breakdown etc. (viii) Where some of the entries of duty payment had been left blank, he could not say with certainty that no duty was paid in cases of such goods as there was a possibility that duty had been paid on these goods later. (ix) When he was confronted with 3 pink weighment slips no 65, 66 67 all dated 16-07-2014 and asked whether he had made entries in pen drives in respect of these weighment slips, to which he answered that the relevant entries were made by Shri Gautam Banerjee who was another Data Entry Operator. (x) That inculpatory portions of his statements were recorded by the officers under pressure. (xi) He had no idea whether the goods were cleared to Shri Girish Tikmani without payment of duty. 13.9.2 Kanhaiya Aggarwal in respect of statement 17-07-2014 The pink slips were prepared in all cases where computer slips was generated. (i) The question of clearances of goods without payment of duty on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officials. 13.9.7 Girish Tikmani in respect of statement dated 29-02-2015 He used to receive Pig Iron from JBIL III on the basis of invoices and weighment slips and was making payments to them through RTGS and cheques. (i) That he was never confronted with any computer printouts by the investigating officers while recording his statement dated 20-2-2015. (ii) Denied having received any goods from JBIL III without any bill. (iii) When confronted with the portion of the statement wherein he had stated having received the goods without bills from JBIL III he stated that he was surrounded by many officers and he was under great stress when he wrote his statement. (iv) Informed that he had retracted from his statement on the very next day and brought on record notarized affidavit dated 21-2-2015. 13.10. From the above, we observe that during the course of cross examination, most of the persons who have given the statements retracted their statements. In the impugned order, the adjudicating authority has held that if the statements were recorded under threats and duress, it is not understood as to what prevented them from retracting their statements within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this regard by Section 9D(1)(b) of the Act. 4 . In view of the fact that the case of the petitioner is essentially premised on Section 9D of the Central Excise Act, 1944, it would be appropriate to reproduce the said provision, in extenso, thus : 9D. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement, recorded during investigation in Central Excise, as evidence of the truth of the facts contained in the said statement, it has to be held that the adjudicating authority has relied on irrelevant material. Such reliance would, therefore, be vitiated in law and on facts. 10. Once the ambit of Section 9D(1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub-section, which are contained in clauses (a) and (b) thereof. 11 . Clause (a) of Section 9D(1) refers to the following circumstances : (i) when the person who made the statement is dead, (ii) when the person who made the statement cannot be found, (iii) when the person who made the statement is incapable of giving evidence, (iv) when the person who made the statement is kept out of the way by the adverse party, and (v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. 12 . Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, it is self-evident inference that the decision flowing from the exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry/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 compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 16 . Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Tribunal in Bussa Overseas Properties Ltd. v. C.C., 2001 (137) E.L.T. 637 (T). 22 . It is clear, from a reading of the Order-in-Original dated 4-42016 supra, that Respondents No. 2 has, in the said Orders-in-Original, placed extensive reliance on the statements, recorded during investigation under Section 14 of the Act. He has not invoked clause (a) of sub-section (1) of Section 9D of the Act, by holding that attendance of the makers of the said statements could not be obtained for any of the reasons contemplated by the said clause. That being so, it was not open to Respondent No. 2 to rely on the said statements, without following the mandatory procedure contemplated by clause (b) of the said sub-section. The Orders-in-Original, dated 4-4-2016, having been passed in blatant violation of the mandatory procedure prescribed by Section 9D of the Act, it has to be held that said Orders-in-Original stand vitiated thereby. 23 . The said Order-in-Original, dated 4-4-2016, passed by Respondent No. 2 is, therefore, clearly liable to be set aside. 24 . In view of the above facts and circumstances, the impugned Order-in-Original dated 4-4-2016 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Hon ble Supreme Court in Arya Abhushan Bhandar v. U.O.I., 2002 (143) E.L.T. 25 (S.C.) and Swadeshi Polytex v. Collector, 2000 (122) E.L.T. 641 (S.C.). 25 . The writ petition is allowed in the aforesaid terms. 13.12. Once it duly came on record that various statements recorded from the witnesses were not of voluntary nature but were recorded after putting undue pressure upon the witnesses the same could not be admitted in evidence by the Adjudicating Authority. The same clearly lost its evidentiary value. Once these statements are excluded from evidence no reliance could be placed on the computer printouts and other evidences. The law laid down in the Delhi High Court, in the case of C.C.E Vs. Vishnu and Co. Ltd reported in 2016 (332) ELT 793 (Del), is reproduced below: 41 . What the above submission overlooks is the reliability of such statements. Once it is shown that the maker of such statement has in fact resiled from it, even if it is after a period of time, then it is no longer safe to rely upon it as a substantive piece of evidence. The question is not so much as to admissibility of such statement as much as it is about its reliability . It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot admissible and secondly it cannot be treated as admission because in reply to Show Cause Notice, the said statement was stated to have been obtained under duress. We shall first examine the legal position with regard to the admissibility of the statement of Director which admittedly was taken during search operations by the investigation officers. 9.1 At the outset, it needs to be clarified that during the course of argument, Learned Counsel for the parties agreed that second substantial question of law is with regard to legality of procedure adopted by the adjudicating authority and not the Tribunal as such because the Tribunal has only exercised appellate jurisdiction. This is quite obvious from orders passed by the Tribunal, the appellate authority and pleadings/ground in the appeal. There is no dispute that the adjudicating authority did not record the statement of the Director Mr. Narayan Prasad Tekriwal and the basis of the finding recorded by the adjudicating authority as well as Customs, Excise and Service Tax Appellate Tribunal, has been the statement of the Director as recorded by the investigation officer during investigation. Section 9D of the Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority. 9.3 A conjoint reading of the provisions therefore reveals that a statement made and signed by a person before the Investigation Officer during the course of any inquiry or proceedings under the Act shall be relevant for the purposes of proving the truth of the facts which it contains in case other than those covered in clause (a), only when the person who made the statement is examined as witness in the case before the court (in the present case, Adjudicating Authority) and the court (Adjudicating Authority) forms an opinion that having regard to the circumstances of the case, the statement should be admitted in the evidence, in the interest of justice. 9.4 The legislative scheme, therefore, is to ensure that the statement of any person which has been recorded during search and seizure operations would become relevant only when such person is examined by the adjudicating authority followed by the opinion of the adjudicating authority then the statement should be admitted. The said provision in the statute book seems to have been made to serve the statutory purpose of ensuring that the assessee are not subjected to demand, penalty inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. Reliance has been placed by the Counsel for the Revenue on the decision in the matter of Commissioner of Central Excise v. Kalvert Foods India Private Limited (Laws (SC) 2011 838) = 2011 (270) E.L.T. 643 (S.C.). That decision turned on its own facts. In para 19 of the judgment, it was concluded as below : We are of the considered opinion that it 19. is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides the Managing director of the Company of his own volition deposition the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstances of the present case, the aforesaid statement of the Counsel for the Respondents cannot be accepted. This fact clearly proves the conclusion that the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act. Thus, we observe that there is no corroborative evidence brought in by the Revenue to substantiate the retracted statements. In view of the discussion above and by following the decisions cited above, we hold that the demands in the impugned order cannot be confirmed on the basis of the statements recorded as they have not fulfilled the procedure set out in Section 9D of the Central Excise Act, 1944. Thus, the answer to Question No (iv) and (v) are in the negative. (vi) Whether the allegations of clandestine clearance of finished goods JBIL III sustainable without any corresponding investigation to corroborate the claim, at the receiver's end? 14.1 Duty has been demanded in the impugned order on account of clandestine clearance on many finished goods manufactured by them. The adjudicating authority has relied upon evidences such as the data recovered from the two pen drives and the pink slips recovered on the date of search to confirm the demands in the impugned order. We, now analyze the various evidences relied upon by the adjudicating authority to confirm the demands in the impugned order. 14.2 On the date of search i.e. on 17-07-2014, 4 pink slip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.4. The Appellants stated that the department has not brought in any evidence to corroborate the allegation that the said goods figuring in the aforementioned four pink slips were clandestinely cleared on 16-07-2014. This is evident from the fact that no statements were recorded either Sh. Girish Tikmani or M/s. Manoj Metal on the issue of alleged clandestine clearance of the four consignments of Pig Iron on 16.07.2014. The premises of M/s. Manoj Metal was never searched. The premises of the other buyer, namely, Shri Girish Tikmani, who was the Director of M/s. Laxmi Narain Metalic Pvt Ltd was searched only after more than seven months later, on 22-02-2015. He was never confronted with the said three pink slips. In fact, he was not confronted even with the computer printouts. Hence, we observe that the conclusion drawn by the adjudicating authority that the pink slips were only prepared when the goods were cleared without invoices, is not substantiated by any evidence. 14.5 Another evidence which has been relied upon as corroborating evidence by the Revenue to demand duty in the impugned order is certain private records, such as report no 14 dated 16.07.2014 and documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j Metal, no follow up action was taken. The consignments mentioned in the pink slips were said to have been cleared only day earlier. If the clandestine clearance has actually happened, this would have been easily verified with the customers whose names were available in the pink slips. M/s. Manoj Metal was never summoned and no enquiries were conducted from the transporters. A statement of Shri Girish Tikani was recorded on 22.02.2015, but he was never confronted with the private records or the computer printouts or the pink weighment slips or Report-14 or the contents of page -58. The Pig Iron is a raw material but no inquiry was conducted as to who consumed the said goods allegedly cleared without payment of Central Excise duty. If JBIL III would have clandestinely cleared 64.65 MT of Pig Iron on 16-07-2014 there was bound to be shortage of finished goods and raw materials on 17-07-2014 i.e. on the date of search. But there is no such evidence on record. Similar is the position with regard to document No. 58. The scribe of the document has not been identified and no inquiry was conducted as to what was the purport of the said document. Thus, we hold that the said documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Rubber weighing 73.42 MT on 15-07-2014 to JBIL IV. No enquiries were conducted by DGCEI in this regard either on 17-07-2014 or thereafter. Similar is the case with earlier dates. On 15-07-2014 also, JBIL III have cleared 16 consignments of Pig Iron weighing 251.33 MT to Girish Tikmany, Pawan Bansal, Deepak Dalmia,Manoj Metal Udyog and Saran Alloys Pvt Ltd and two consignments of Runner weighing 73.42 MT to JBIL IV but no investigation at all were made to that effect from the alleged recipient of Pig Iron from JBIL IV where simultaneous search was conducted on 17-07-2014. 14.10. If we take into account the alleged clandestine clearance for the last sixteen days prior to the search of the unit of JBIL III, 129 consignments were allegedly cleared clandestinely without payment of Central Excise duty during the said short period of time, out of the total of 743 consignments which were cleared during this period from 01.07.2014 to 16.07.2014. Even prior to the said period, they were allegedly clearing the goods without payment of Central excise duty during the last more than four years i.e. w.e.f. 1-4-2010 on regular basis. If such allegations are accepted to be true, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Show Cause Notice contained names of the purported buyers but no enquiry was conducted from them as to whether they had paid any consideration on the receipt of such GR Slag. Even otherwise GR Slag was exempt from Central Excise Duty in terms of Notification 4/2006-CE dated 01.03.2006, serial no 6 thereof which was superseded by Notification 12/12-CE dated 07.03.2012 serial no. 37. This Tribunal in the case of Aggarwal Channel Mills Pvt. Ltd. Vs CCE Raipur, 2015 TIOL 2372 and in JBIL Group s own case at their Raipur Unit as reported in M/s. Jai Balaji Industries Ltd Vs. CE and Service Tax, Raipur 2017-TIOL-2560-CESTAT-DEL has clearly laid down that GR Slag was only a by-product and exempt from duty. We observe that GR Slag is exempted from Central Excise duty vide Notification 4/2006, as amended. Also, the investigation has not brought in any evidence to prove that the said goods have been cleared without payment of duty. Hence, the demand confirmed in the impugned order on this count is not sustainable. 14.12. The Appellants contended that duty demand of Rs. 2,11,98,601/- on Runners, Rs.1,45,48,113/- on HPTM Cutting Pipe/HPTM Broken Pipe and of Rs.1,51,491 on Ladle and Ladl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no corroborative and substantial evidence on record. 14.14. In the case of Vandana Art Prints Pvt. Ltd. Others Vs. Commissioner of Central Excise, Surat-1reported at 2008 (221) E.L.T. 27 (Guj.),it has been held as under: 2 . The short controversy involved in this appeal is whether there can be a duty demand on the basis of clandestine removal of goods. While considering the factual aspects, the Tribunal has considered this issue as under :- This demand is based on two dairies seized from Shri Maheshkumar Satyanarayan Jhawar and on his statement as well as the statement of Shri Sushilkumar Poddar, Director of the assessees company. The job work charges have been computed on above basis at Rs. 62,49,339/-. Shri Maheshkumar Satyanarayan Jhawar stated that two decimal points have been shifted in the two diaries whereas Shri Sushilkumar Poddar has stated that they were shifting the decimal point by one place. For example, 117.7 mtrs should be read as 1177 mtrs and the bill amount would be Rs. 4708/- instead of Rs. 470.80. Thus, it is noted that there is a dichotomy between the two statements. In such a situation where difference between two statements would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Rajkot, reported in 2013(288) ELT 500 (Guj), it has been held that statements alone not sufficient to demand duty on clandestine clearances. The relevant paras of the decision are reproduced as under. 6.1 For coming to the conclusion that there was a clandestine removal of goods, the only material on which heavy reliance was placed by the Department was the statement of the Director Shri Sandeep R. Patel recorded on 1st July, 2008 under section 14 of Act. The same came to be retracted by affidavit dated 26th July, 2008, the relevant portions from the retracting affidavit are reproduced hereinbelow : At the entire of the investigation and after made punchnama as per them version, they called two persons from out side and taken signature of these two persons on punchnama along with me. After completion as above, in my utter surprise they to record my statement at weedy hours without issuing me SUMMONS - as required under law - till this date. I politely refused for the same. But they have taken me under coercion and duress for statement proceeding. For buy peace from the officers, I have surrendered myself for strenuous exercise held by officers at we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarify that the contents whatsoever written and taken my signature thereon may not be considered true, sound minded and under normal circumstance as they had often given reference of arrest to me. 6.2 The confession or self-incriminatory statement made would come within the purview of Section 24 of the Evidence Act, 1972, the same being relevant, is produced hereunder : 24. Confession caused by inducement;, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, If the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 6.3 . Section 14 of the Central Excise Act, 1944 which is similarly worded as Section 108 of the Customs Act, 1962, deals with the powers of the empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi-criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore also, the said confession could not have been used as a piece of evidence and there was no basis for inference and conclusion about clandestine removal of goods thereof. 6.8 It was further noticed that the failure on part of the appellant to produce accounts was in course of the process of investigation. The assessee s case was that it was maintaining the register and the entries wore being made therein about receipt and clearances of goods and the same was produced at the time of personal hearing but the authority rejected if viewing the same as an afterthought. The regular accounts under the excise law were not maintained by the assessee considering that since the exemption limit in the said Notification applied to it, maintaining of accounts for the excise purpose was not required. It is not disputed that the assessee was otherwise maintaining the accounts for the purpose of other laws like Sales Tax Act, Sales Tax Registration and its accounts were audited in accordance with the provisions of the Companies Act, 1956. In the Order-in-Original dated 17-6-2009, the adjudicating authority itself observed that there were no statutory records or excise records as they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on investigation, it was found that the assessee was not maintaining proper accounts and the Director also admitted that there was no accounted stock in the factory, which would be to the tune of Rs. 76,65,000/- upto 1st July, 2008 and the admitted aggregated value of the clearance of the goods worth Rs. 96,65,000/-. It was stated by the learned Tribunal that since the appellant was not maintaining the accounts, they cannot take shelter under the fact that they were small scale industry and fell below the clearance limit of Rs. 1,50,000/- and that progressive total clearance of the goods is not known and is ambiguous. 7 . In light of the foregoing discussion, approach of the Central Excise Authority was erroneous and the findings arrived at by the learned Tribunal were not tenable at law. Once the sole basis of confessional statement adopted by the Authority in basing the case against the assessee was found to be an unreliable piece of evidence, inferences and conclusions about clandestine removal of goods fail to sustain. They were rendered in the realm of propositions and suppositions. It could not be said that the assessee deliberately not maintained the accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue s case, we are of the view that the sufficient evidence does not exist in the present case, so as to uphold the findings of clandestine activity against the appellant. 14.17 In view of the above findings, we hold that the investigation has failed to establish the alleged clandestine clearance of goods by the Appellants and hence the demands confirmed in the impugned order are not sustainable. Accordingly, answer to the Question (vi) is in the negative. (VII) Whether the demands confirmed in the impugned order on clandestine clearance of finished goods is sustainable in the absence of any evidence of procurement of the major raw materials such as Iron Ore and Coal, without invoices? 15.1 The Appellants contended that clandestine clearance of such huge quantity of finished goods require raw materials for manufacturing the same. Iron Ore is the major raw material for their finished products. They argued that DGCEI did not conduct any investigation either from the mine owners or from the Railways or from any transporter to substantiate their allegation that JBIL III and JBIL IV have procured any unaccounted raw material from them or transported without invoice. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Iron (MT) Requirement of Iron Ore (MT) Requirement of Sinter (MT) Requirement of Coal Coke (MT) Requirement of Limestone Dolomite (MT) 4236.56 MT 2281.38 5758.37 3158.97 297.69 15.4. With regard to duty demand on Pig Iron from JBIL III, the chart below shows the alleged clandestine removal of Pig Iron to the extent of 57,793.66 MT and requirement of various raw materials:- Years Pig Iron Requir- ement of Iron Ore Require- ment of Iron Ore Pallet Requir- ement o f Sinter Requir- ement of Coke Require- ment of Lime Stone Requi- rement of Dolomite 2011-12 1,022.91 261.98 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Iron Ore and other mineral products, so that the sale was carried out strictly as per the form-L and Form-I. Thus, there is no possibility of procuring unaccounted raw materials which could enable JBIL III and IV to indulge in clandestine manufacture and clearance of finished goods. It is submitted that even procurement of coal, which is required to manufacture Sponge Iron is largely controlled by the Central Government. Both Pig Iron and Sponge Iron are used captively in JBIL III plant for the manufacture of MS Billets. The coal is largely procured from different sources like Eastern Coalfields Ltd. (ECL), Mahanadi Coalfields Ltd (MCL) and also through E-auction. Both ECL and MCL are Central Government controlled and the coal linkage facility also allotted to JBIL under Fuel Supply Agreement (FSA) like Iron Ore, Coal. Coal is mostly transported through Railway. Therefore, there is no scope for procurement of coal as a raw material in clandestine manner. We observe that unless JBIL III and JBIL IV have received the quantities of raw materials mentioned in the two charts above, they could not have manufactured finished goods and removed the same clandestinely. We observe that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aders (P) Ltd. Reported in 2013 (287) ELT 243 (Guj), which has been upheld by the Apex Court as reported in 2014 (303) ELT A24(SC). The relevant part of the judgement is furnished below: 7 . The Tribunal in Paragraph Nos. 12, 13 and 16 has recorded clear finding that when the premises of the respondent were visited, the stock of raw-material and finished goods were tallying with the recorded goods. Further, nothing on record was found by the authority, which showed that unrecorded raw-materials were purchased or consumed by the respondent or that the respondent had clandestinely manufactured or removed the goods. It is necessary to extract Paragraph Nos. 12, 13 and 16 of order of the Tribunal, which reads as under :- 12. Be that as it may be, it is to be noted that there is no dispute that to manufacture of said final product Frit requires the use of Quartz, Feldspar, Zinc, Borax Power, Calcium and Dolomite as inputs/raw material. On the date of visit of the officers to the factory premises of the appellant, it is undisputed that the stock of raw materials as well as finished goods was tallying with recorded balances. This conclusion can be reached from perusal of reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence is ignored. In such circumstances, only the Court may exercise jurisdiction on issue which may give rise to any substantial question of law. In this appeal, no substantial question of law arises for consideration of this Court. 15.9..In the case of Mohan Steels Ltd. Vs. Commissioner of Central Excise, Kanpur 2004 reported at (177) ELT 668 (Tri. Del.) it has been held that unless department produces evidence, which should be clinching, in the nature of purchase of inputs and sale of the final product demands cannot be confirmed based on some note books. The relevant part of the decision is reproduced below: 9.1 We have considered the submissions of both the sides. The impugned Order has been passed by the Commissioner on remand by the Appellate Tribunal vide Final Order No. A/899-901/2000, dated 910-2000. The Tribunal had remanded the matter as the evidence produced by the Appellants from independent manufacturers and others was not examined properly and when the assessee had stated that power consumption may be taken as a factor for determining the quantum of final product the Commissioner had observed use of electricity which was not recorded in the bills wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be reduced by recent developments such as oxygen assisted melting, oxy-fuel burner, scrap pre-heating, water cooled roof and panels for wall lining, etc. The Report envisaged two model plants and the norms for the important parameters were worked out in order to establish the benefits of the phase of modernization. The norms for power was 670 kwh/per ton of billet for 10/12 t furnace and 630 kwh for 25/30t furnace. These norms regarding consumption of power have not been disputed by the Revenue. The Adjudicating Authority has come to the conclusion, merely on the basis of three furnaces found to be working by the visiting officers, that the Appellants had indulged in a systematic manipulation of records of power consumption. This finding is without any material brought on record. On the other hand the Appellants have brought on record a certificate dated 26-12-96 issued by the Divisional Engineer. Electricity Distribution Division, Unnao which mentions as under :- On the basis of the reports/raids conducted from 1988 till date of metering arrangement checks on USEB 33/11KV Sub-station at Mohan Steels Ltd., Unnao; manned by the employees of the Board for 24 hours, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 1 ton of ingot/billet, the Commissioner has confirmed the demand on the basis that 9 kgs. ferro alloys is required for manufacturing 1 kg. of ingot/billet. This is not supported by any technical data/literature on the subject. On the other hand, the Report on Technology Evolution in Mini Steel Industry clearly mentions that Analysis of the ferro-alloy consumption in mini steel plants reveal that consumption of ferro-manganese varies from about 5 to 12 kg/t and that of ferro silicon from about 3 to 7 kg/t of billets. In general, it can be assumed that mini steel plants would consume about 10 kg/t of ferro manganese and 5 kg/t of ferrosilicon . The Report also fixes the same quantum of consumption of ferro-manganese and ferro-silicon as norms while dealing with Norms for Important Parameters . The learned Consultant has also brought on record the Input-Output ratio fixed by the Ministry of Commerce for Import-Export purposes. As per these norms also Silico Manganese required is 15 kgs. and Ferro Manganese 10 kgs. In view of this the Revenue cannot proceed on the assumption that only 9 kgs. of ferro alloys is required for manufacture of one ton of billet merely on the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Potassium Chloride and no effort was made to investigate such use of Hydrochloric Acid or any other raw material. The settled legal position is that when several raw materials are involved, when a case of clandestine production and clearance is built on clandestine use of raw materials, the same should be proven with reference to unaccounted use of all such major raw materials. 22 . In a case of clandestine removal the department should produce positive evidence to establish the same. In the absence of corroborative evidence, a finding cannot be based on the contents of loose chits of uncertain authorship. Department has not produced evidence of use of inputs to prove that there was manufacture of unaccounted finished product. No statements have been obtained to show as to from whom raw materials were purchased. No evidence has been obtained for the use of electricity or receipt of sale consideration by the assessee to prove clandestine manufacture and sale. The department had obtained a statement from M/s. Dhanalakshami Traders, dealer in Potassium Chloride to the effect that the assessee herein had obtained from them on payment of commission, bills for having purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nely. The inference is based on certain private documents only. There is no corroborative evidence recorded. If such huge quantity of cut tobacco was manufactured during the period from April 1998 to September 1998 when the factory is under physical control and removed, either the officer in charge has connived with the appellants or he closed his eyes to whatever was happening. In either case, the department should have proceeded against the officers. There is absolutely no indication in the investigation regarding any complicity of the officers posted in the appellants unit. Moreover, the investigation has not found out at least a few buyers who have received the goods cleared clandestinely. There is no evidence of excessive consumption of electricity. When the officers visited the unit, they had not found out any unaccounted stock of cut tobacco. In the present case, the charges are based purely on a theoretical working out based on the private documents, which are not statutory. The Hon ble CEGAT, in the case VST Industries Ltd. (cited supra), has held that the charges of clandestine removal cannot be based on assumptions and presumptions. In the Godfrey Philips case, the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. 15.12. In the case of Gupta Synthetics Ltd. Vs CCE, Ahmedabad-II, reported in 2014 (312) ELT 225 (Tri-Ahmd), it has been held that there should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions: 14 . After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of clandestine activities. The said theory, cannot be adopted in cases of weak evidences of a doubtful nature. Where to manufacture huge quantities of final products the assessee require all the raw materials, there should be some evidence of huge quantities of raw materials being purchased. The demand was set aside in that case by this Tribunal. 15 . We may now proceed to deal with the two demands of duty in the present case : It is the contention of GSL that the demand of Rs. 32,07,422/- was wholly illegal and without any justification because no evidence has been produced to the effect that GSL had actually manufactured the quantity of 91929.140 Kgs of DT Yarn, which is alleged to be cleared clandestinely without payment of duty. It was further submitted that as per Annexure A(1) of the show cause notice it is clear that the figures of the alleged clandestine manufacture and removal has been arrived at on the presumption that GSL had achieved during the period 1-7-2002 to 15-8-2002 an optimum production of 1867 Kgs of DT Yarn. However, there was no evidence showing that GSL had achieved optimum production of 1867 Kgs of DT Yarn during the period of 45 days. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -19 did not correlate to another and thus, the details shown in A-19 being corroboration to the case made out by the Revenue on the basis of A-21 was totally illegal and incorrect. Even the document titled as A-20 did not support the case of the Revenue as the loose papers found in this file were never examined by the Revenue. In reply to the submission made on behalf of GSL it was submitted by the learned Special Counsel, Mr P.R.V. Ramanan that the Adjudicating Authority has confirmed that the duty demand of Rs. 32,07,422/- on the basis of records recovered from the premises of the GSL. Mohan Lal Gupta, Director of GSL on 3-9-2003 has deposed that there are 156 positions on each Crill and on an average 10 Kgs of POY was loaded for processing each day. Thus, total average weight for each Crill were worked out to 1560 Kgs per day. Further, Mohan Lal Gupta had stated that there was Crill change every day and the factory was running in two shifts. From the statement of Gupta the only inference that could be drawn was that on an average 1560 Kgs of DT yarn was being manufactured by GSL each day. It was also submitted that the Adjudicating Authority has also relied upon the seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22/-, which has been confirmed against Nova by the impugned order, is not based on evidence which, as this Tribunal has repeatedly emphasized in cases of clandestine manufacture and clearance, would justify a finding against the appellant (GSL). Unless there is conclusive evidence that Nova did actually manufacture DTY and clandestinely clear them without payment of duty, liability cannot be placed on GSL on the basis of conjectures and surmises, as the Hon ble Supreme Court emphatically declared in the Oudh Sugar Mills case (supra). We are of the view that there is no tangible evidence produced by the department to establish that GSL has clandestinely manufactured and cleared DTY on which the present demand has been made. We, therefore, set aside the demand of Rs. 32,07,422/- as being illegal and unjustified. 16. As regards the demand of Rs. 73,00,168/-, it is the contention of GSL that the said demand has been made on the basis of seized records i.e. document titled as A-23. It was further submitted that the said demand was purely based on assumptions and presumptions as it has not been established by the Revenue as to who had written the details in A-23. The purpose fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the yarn was produced on DT machine on which random samples were shown to have been drawn. The Adjudicating Authority has rightly concluded that the private records maintained by the assessee are sufficient for arriving at the figures of production and clearance of GSL as the records A-19, A-20 were either maintained or duly signed by the Supervisor In-charge of the DT machine which means that the said records reflected the true and correct working on the DT machine. We have considered the submissions of both parties. We find that no evidence has been produced by the Revenue to show that GSL has effected sale of such huge quantities of DTY weighing 214.685 mtrs. There is no tangible evidence of GSL having actually produced all the DTY or Twisted Yarn from out of non-duty paid POY supplied by Nova or by another company. No transporters documents have been seized or produced by the Department to show transport and sale of such huge quantities of POY from Nova or any other company to GSL or, even for that matter, from GSL to the buyers of DTY produced by GSL. No evidence has been forthcoming of purchase of raw materials by Nova or any other company for productio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate, appearing for Nova have laid down the parameters for a charge of clandestine manufacture and clearance to be established, which have not been satisfied in the present case. The present demand of Rs. 73,00,168/- is, therefore, unjustified and deserves to be set aside. Accordingly, we do so. 15.13. In the case of Nebha Steels Ltd. Vs Commissioner of Central Excise, Chandigarh, reported in 2016(344)ELT 561(Tri-Chan), it has been held that when the colluding parties have not been made parties to the Show Cause Notice, the same may be treated as defectice. The relevant para of the order is reproduced below: 22 . We also observe that there are 28 buyers of the finished goods and the adjudicating authority has relied upon the statements of 16 parties and these statements are typed one and identically worded and cross-examination of these buyers have not been granted to the appellants which was denied on filmy ground, i.e., their life and liberty will be in danger. Therefore, the statements of these persons cannot be relied upon. Moreover, 12 buyers who also made the statements during the course of adjudication have not been relied. Therefore, veracity of the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case was made out on the basis of printouts taken from hard disc seized from the secret office of M/s. SPRML. The duty demanded was confirmed by the Commissioner of Central Tax and GST, Bolpur, but on appeal the Tribunal, Kolkata set aside the demands on the basis of the following findings:- 16.1. That though the employees of the purchaser had accepted having received goods from JBIL III without payment of duty but when it was not accepted by the supplier it could not be concluded that there was any clandestine removal on the part of the supplier (JBIL III). Further, cross examination of those employees were not allowed, therefore, no reliance could be placed on their statements.( Cross examination was allowed in this case is the only difference. Otherwise, on facts, both cases are similar). 16.2 That JBIL would have required huge quantity of raw materials like iron ore, lam coke, steam coal, manganese and scrap. No evidence has been gathered to show the illegal and clandestine procurement of the said raw materials. The department did not produce any evidence of consumption of electricity, deployment of labour and production of such M.S. Billets. Without any investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5585/2020 was passed by this Tribunal. No appeal has been preferred by the department against this order meaning thereby that the department has accepted the findings of the Tribunal which has attained finality. 16.8. Accordingly, relying on the above said decision by this tribunal in their own case and the various other decisions cited by them in their written submissions, they prayed for setting aside the demand of duty and penalties imposed against all the three the Appellants in the impugned order. (viii) Whether penalty is imposable on the Appellant companies and it's Director, on the basis of the evidences available on record? 17. We observe that penalty equivalent to the duty confirmed has been imposed on both the Appellant companies JBIL III and JBIL IV, in terms of provisions of Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. Penaty of Rs.5,00,00,000/- was imposed on Shri. Aditya Jajodia ( wrongly mentioned as Ajit jajodia in the impugned order), Director of the Appellant Companies, under Rule 26 of the Central Excise Rues, 2002. 17.1 The allegation against the Appellant companies was that they indulged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h type of vague allegations did not advance the case of the DGCEI. Shri Aditya Jajodia , in the reply to the Notice, informed the Adjudicating Authority that all the summons and replies were given thereto. He categorically stated that these summons were not pertaining to the present proceedings. The Appellant stated that unfortunately the Adjudicating Authority has not taken the further submissions dated 27-05-22 made by them into consideration while passing the impugned order. Therefore findings of the Adjudicating Authority in para 37 of the impugned order are factually incorrect. Shri Aditya Jajodia was never summoned with regard to the present proceedings. 17.4 The Appellant further stated that there is no evidence on record to show that Shri Aditya Jajodia was concerned with transporting, removing, depositing, keeping, concealing, selling and purchasing of excisable goods, which he had knowledge, or reason to believe were liable to confiscation. The JBIL III and IV have already made detailed submissions that the duty demand on both the units is not sustainable on various grounds. The said grounds are reiterated and contended that since no duty demand is sustainable ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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