TMI Blog2024 (3) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... t is found from the records that the confirmation of demand on goods allegedly cleared clandestinely has been based on certain records recovered from other parties and sought to be backed by statements of customers and transporters. No evidence as forthcoming of any other material records of physical clearance or of any recovery of sale proceeds. The request for cross-examination had been declined without assigning any reasons or even considering the mandate of section 9D of Central Excise Act, 1944. The sole evidence is records of other parties and linking of the appellant with those has been attempted through statements that were not tested in cross-examination despite requests from the appellant. No corroborative evidence of any kind app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the ground of denial of cross examination of witnesses considered to be material to the finding and, in the absence thereof, by attribution of lack of credibility to the inferences drawn from computer printout of ledger recovered from M/s Shri Osiya Traders together with statement of its proprietor who was also a noticee in the proceedings. 3. It is further submitted by Learned Counsel for the appellants that inadmissibility of documents retrieved from computer without authentication has been settled by the Hon ble High Court of Orissa in Commissioner of Central Excise and Customs, Bhubaneswar-II v. Shivam Steel Others [2022 (12) TMI 908-Orissa High Court] and that the decision of the Hon ble Supreme Court in Andaman Timber Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rintouts of party-wise purchase ledger of M/s. SOT during search of the premises of M/s. SOT could not be denied by the assessee. In fact the correctness of the said data is established beyond doubt. I find that the charge of pressure / threat has been made only in reply to SCN and not at the time of statements made or immediately afterwards. Further, and such a serious allegation has been made without any supportive evidence to substantiate the same. It is also relevant to note that the persons whose statements were recorded have neither complained of any pressure/threat, any time earlier, when the investigation of the case was going on nor now and they have never retracted their deposition/ statements made by them till date. I further fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 546 (SC)] has held that the prosecution or the deptt is not required to prove its case with mathematical precision . The law does not require the prosecution to prove the impossible. All that is required is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in the issue. that this is so. 6. It is also clear from 16.2 Thereafter, personal hearing was again fixed on 1.7.2014, wherein Shri D.R. Gadekar, Consultant appeared and he filed a written submission dated 01.07.2014 and reiterated the submissions made therein and again requested to allow cross examination of the witnesses, which was not acceded to. that request for cross-examination had been declined without assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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