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2024 (6) TMI 1319 - AT - Central ExciseClandestine removal of goods - statements recorded during the course of investigation were not tested in terms of Section 9D of the Excise Act - requirement to prove with cogent evidence and not on the basis of preponderance of probabilities - HELD THAT - The facts of the case in the case of M/S. SHIV SHAKTI SPONGE IRON LIMITED, M/S. BHARAT BHUSHAN SACHDEVA (FORMER DIRECTOR) (NOTICEE NO. 2) VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESHWAR BHUBANESHWAR-I COMMISSIONERATE 2020 (1) TMI 532 - CESTAT KOLKATA is perused. In that case, no search was conducted in the premises of M/s Shiv Shakti Sponge Iron Ltd. the same has been recorded in the said order. Therefore, the facts of the case in hand are not similar to the case of M/s. Shiv Shakti Sponge Iron Ltd. Therefore, the said decision is not applicable to the facts of the case in hand. The statements recorded during the course of investigation which were relied upon, are to be tested and examined in terms of Section 9D of the Excise Act, 1994 in which the Respondent failed to do so. In that circumstances it would be in the interest of justice to remand the matter back to the Adjudicating Authority first to test the statements relied upon in terms of Section 9 D of the Excise Act, 1944 and thereafter, to pass an appropriate order in accordance with law following judicial pronouncements. Matter remanded back to the adjudicating authority for fresh adjudication - appeal disposed off by way of remand.
Issues involved:
1. Allegation of clandestine removal of goods against the appellants. 2. Validity of the impugned order confirming the allegation. 3. Comparison of facts with a previous case involving a related company. 4. Testing of statements recorded during the investigation in terms of Section 9D of the Excise Act. 5. Requirement of cogent evidence to prove clandestine clearance. Detailed Analysis: 1. The judgment addressed the allegation of clandestine removal of goods against the appellants, M/s. Union Enterprises and Atlanta Commodities Pvt. Ltd., who were engaged in manufacturing M.S. Ingots and M.S. Bars & Rods. The Directorate General of Central Excise Intelligence conducted search operations based on intelligence, seizing records and documents, including a pen drive allegedly containing incriminating data. Show Cause Notices were issued, leading to the confirmation of the allegation by the Adjudicating Authority, imposing duty, interest, and penalties on the appellants. 2. The validity of the impugned order was challenged by the appellants, arguing that a similar investigation against a related company had resulted in the charge of clandestine removal being dropped by the Tribunal. They contended that the charge was not sustainable against them and that the statements recorded during the investigation were not tested as required by Section 9D of the Excise Act. The appellants emphasized the need for cogent evidence to prove clandestine clearance, challenging the basis of the impugned order. 3. The Tribunal differentiated the facts of the present case from the previous case involving M/s. Shiv Shakti Sponge Iron Ltd., where no search was conducted at the company's premises. The Tribunal noted that the statements recorded during the investigation were not tested in accordance with the Excise Act. Consequently, the Tribunal decided to remand the matter back to the Adjudicating Authority for fresh adjudication, emphasizing the importance of testing and examining the statements in line with the legal requirements before passing an appropriate order. 4. The judgment highlighted the necessity of following judicial pronouncements and legal procedures, indicating that the matter needed further examination and clarification. By setting aside the impugned orders, the Tribunal directed a fresh adjudication, keeping all issues open for consideration and instructing the Adjudicating Authority to pass an order in accordance with the directions provided in the judgment. 5. Ultimately, the appeals were disposed of, with the Tribunal pronouncing the decision in open court on a specified date, ensuring a comprehensive review and remand of the case for further legal proceedings in adherence to the principles of justice and legal requirements.
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