9911796707
TMI Blog2017 (11) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favor of appellant. - E/1141/2008-SM - A/61966/2017 - Dated:- 21-9-2017 - Mr. Ashok Jindal, Member (Judicial) Shri Mohit Singh, Advocate for the appellants Shri A.K. Saini, AR for the respondent ORDER Per: Ashok Jindal This is second round of litigation. In earlier round of litigation, the matter was remanded back to the adjudicating authority wherein this Tribunal has observed We find that in this case the appellant raised many points in reply to SCN before adjudicating authority in respect of the calculation of shortage as well as regarding the valuation of the goods. We also find that Commissioner (Appeals) in the impugned order while confirming the demand held that it is a case of no positive eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority in the adjudication order. But while considering, the penalty aspect, he held that there is no positive evidence of clandestine removal, the penalty was reduced. He also observed that these goods have not been removed clandestinely; therefore, no interest is chargeable. The said order was challenged by the appellant before this Tribunal and this Tribunal remanded the matter to the adjudicating authority as stated in the paragraph hereinabove. In remand proceedings, the duty was reduced considering the valuation aspect, along with interest and penalty was restricted to 1.50 lakhs. Aggrieved from the said order, the appeal is before me. 4. Learned Counsel for the appellant submits that in the initial proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the panch witnesses signed the panchnama. Later on the panch witnesses filed affidavits saying that they were not part of the proceedings, they were only called to sign the panchnama. The authorities below have merely given the finding that these affidavits are an afterthought. In fact a person stating on oath is admissible evidence, however, that should be rebutted with positive evidence and no positive evidence has been produced by the authorities below to discard the contents of the affidavits. In that circumstance, the panchnama drawn during the course of investigation has no evidentiary value. As the demand sought to confirm on the basis of shortage found as per panchnama drawn during the course of investigation, the said panchnama ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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