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TMI Blog2017 (11) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... in departmental proceedings. The matter is remanded to the adjudicating authority - appeal allowed by way of remand. - Appeal No. E/50190–50191/2016 - Final Order No. 57831-57832/2017 - Dated:- 14-11-2017 - Hon ble Mr. Justice (Dr.) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member (Technical) Dr. Prabhat Kumar Sh. Bharat Bhushan, Advocates for the appellant Sh. M. R. Sharma, DR for the respondent ORDER Per : V. Padmanabhan 1. These Appeals have been filed against the Order-in-Original No. 39/2015 dated 30-11-2015. The appellant- assessee was engaged in the manufacture of evaporating air cooler falling under sub 8478 7906 00 of the First Schedule to the Central Excise Tariff Act, 1985. On 26-03-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of Shri Amit Choudhary on whom penalty was imposed. The Revenue was represented by Shri M R Sharma, DR. 3. Heard both sides at length and perused the appeal record. 4. Dr. Prabhath Kumar, Ld. Counsel submitted that during the course of search operation on 26-3-2010, the departmental officers seized evaporating air coolers found in the various godowns as well as offices of the appellant assessee, on the reasonable belief that such goods were cleared from the assessee s factory without payment of duty. However, the assessee disputed the fact that seized goods were complete evaporation coolers. They claimed that a significant part of the seized goods comprised only of the plastic bodies and were not complete air coolers which wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he main grounds of the appeal as explained by Learned Counsel, before us is that the demand raised on the basis of documents recovered from the residential premises is not maintainable. It has been argued that documents recovered are from 3rd party premises. The author of the documents have not been identified and questioned and in the absence of the same, these documents cannot be used against the appellant. The Ld Counsel further argued that no investigation has been conducted to enumerate corroboration from the buyer s end. No suppliers have also been covered the investigation. 7. Ld. Counsel concluded his argument by stating that the Principles of Natural Justice have been given the co-by inasmuch as the examination as well as cross- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However when the stock verification was done once again as ordered by the Delhi High Court, it was found that a large number boxes which were originally presumed to contain complete evaporative coolers were found to contain only the enclosures. This raises serious doubt on the authenticity of the evidence. In any case the assessee has abandoned the seized goods and hence are not liable the pay the duty on the seized goods. 13. The other piece of the documentary evidence were those seized from residential premises of the proprietor Shri A K Choudhary. Admissibility of these documents has also been questioned by the appellant during present proceedings. It has also been argued that the demand built up on the basis of various documentary e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) When the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2). The provision of sub-section (1) shall, so far as may be, apply in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D (1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightway rely on the statement recorded during investigation/.inquiry before the gazette Central Excise officer, unless and until he can legitimately invoke clause (a) of Section 9D (1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof he has to first admit the statement in evidence in accordance with clause (b) of Section 9D (1). For this, he has to summon the person who had made statement, examine him as witness before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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