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2021 (6) TMI 973 - AT - Central ExciseLevy of penalty - Clandestine removal - case solely made on the strength of statements - cross- examination done or not - HELD THAT - An identical issue was decided in the case of ATUL BANSAL, BANSAL CASTINGS PVT. LTD., HIMANSHUBHAI NANDLAL JAGANI VERSUS C.C.E. S.T. -RAJKOT, BHAVNAGAR 2019 (8) TMI 959 - CESTAT AHMEDABAD where it was held that Since the statements cannot be relied upon, these records in isolation has no evidentiary valued particularly when the same was not corroborated with the statutory records of the appellant. The differentiation asserted by the Learned Authorized Representative is misplaced as the order dated 21.08.2019 of tribunal does not actually go into the statements. Therefore, any extra admission made in the statement is of no relevance to create any distinction from the aforesaid decision. It disregards the statements on the ground that no cross- examination has been granted. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Imposition of penalty for clandestine removal of goods. 2. Reliance on statements without cross-examination. 3. Lack of corroborative evidence. Issue-wise Detailed Analysis: 1. Imposition of Penalty for Clandestine Removal of Goods: The appellant was penalized for allegedly facilitating the clandestine removal of goods from a factory. The appeal contested this imposition of penalty, arguing that the case was similar to a previous case involving the same appellant, where the penalty was set aside due to lack of evidence other than statements. 2. Reliance on Statements Without Cross-Examination: The appellant's counsel highlighted that the case relied solely on statements without any cross-examination, similar to the precedent case of Bansal Castings Pvt Ltd. The tribunal had previously set aside the penalty in that case because the statements were not corroborated by cross-examination, which is mandatory under section 9D. The tribunal emphasized that without cross-examination, statements cannot be relied upon as evidence. 3. Lack of Corroborative Evidence: The tribunal noted that the entire case was based on documents and statements from third parties, specifically brokers, without any corroborative evidence from the appellant's records. The tribunal referenced several judgments, including Rama Shyama Papers Ltd. and Emmtex Synthetics Ltd., which established that liability cannot be based solely on uncorroborated third-party records and statements. The tribunal also cited the necessity of corroborative evidence such as records of raw material procurement, excess electricity consumption, and payment receipts to substantiate claims of clandestine removal. The tribunal concluded that the differentiation asserted by the Learned Authorized Representative was misplaced, as the previous order did not delve into the statements due to the lack of cross-examination. Therefore, any additional admissions in the statements were irrelevant. The tribunal found the facts of both cases to be identical and allowed the appeal, dismissing the impugned orders. Conclusion: The appeal was allowed, and the impugned orders were dismissed due to the reliance on uncorroborated statements without cross-examination and the absence of corroborative evidence, following the legal precedents and settled legal positions.
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