9911796707
TMI Blog2024 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ash Goyal [Prakash], Director. The assessee is assailing the demand of central excise duty of Rs.68,86,290/-under section 11A(4) along with interest and imposition of penalty of equal amount under section 11AC. Prakash is assailing the penalty of Rs.20,00,000/- imposed on him under rule 26(1) of Central Excise Rules, 2002 [The Rules]. 2. The facts which led to the issue of the impugned order are that the Directorate General of Central Excise Intelligence [DGCEI], New Delhi searched the premises of one M/s Kamdhenu Ispat Limited [Kamdhenu] and some of its secret locations and recovered an ingot purchase file. It also recovered a pen-drive during searches. The pen-drive was got examined by the Government Examiner of Questioned Documents [GEQ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of arguments, the Ld. DR has drawn our attention to the detailed report dated 25/02/2009 received from GEQD. He has highlighted from the report that the data file was written on 18/10/2008, which was held as modified on 13/11/2008 by the Commissioner. From the record we also find that the concerned official of GEQD has not been examined by the Adjudicating Authority. Since the entire case is based on the data retrieved by the GEQD, we are of the view that the issue needs to be read judicated after examining the concerned official of GEQD in a personal hearing in the presence of the assessee or his representative for the purpose of arriving at the proper conclusion on the veracity of the data retrieved. Due opportunity of cross examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t persons recorded under section 14 under the Central Excise Act, 1944, and the remaining three are the import purchase file, (RUD-2) of Kamdhenu, data retrieved by DGCEI on pen-drive (RUD-6) and data retrieved by GEQD, Hyderabad (RUD-7). 7. As far as the four statements relied upon in the show cause notice are concerned, learned counsel submits that these statement are not relevant to the case because the procedure prescribed under section 9D of the Central Excise Act has not been followed. This section reproduced as follows: "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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngot purchased file of Kamdhenu; (b) the data retrieved from pen-drive and the PCU and Laptop; and (c) the data retrieved by GEQD as above. 11. As far as the data retrieved by the GEQD is concerned, it has specifically been recorded in this Tribunal's order dated 02.04.2018 in case of Kamdhenu that the concerned official of GEQD was not examined by the adjudicating authority and, therefore, the matter was remanded directing it to be re-adjudicate after examining the concerned official of GEQD in a personal hearing in the presence of the assessee or its representative for the purpose of arriving at the proper conclusion on the veracity of the data retrieved. It was also recorded in the first round of litigation that the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the data retrieved from the pen-drives by DGCEI and the statements recorded under section 14 of the Excise Act by various persons due to clear non-compliance of the mandatory statutory requirements by the Commissioner, the only RUD left is an ingot purchase file recovered from Kamdhenu, in which the appellant's name is indicated. 15. In our considered view, this sole document is not sufficient to either charge the assessee with clandestine removal or to recover duty from it. Consequently, the confirmation of demand of duty interest and penalty against the assessee as well as the penalty imposed on Prakash cannot be sustained. 16. In view of above, both appeals are allowed and the impugned order is set aside with consequential relief to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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