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TMI Blog2018 (6) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements were recorded, namely, Shri Parmanand Purohit, who disclosed that he has prepared the these papers on the basis of information received from Head Office of the appellant as well as branch offices and these papers disclose purchase of timber as well as receipt of sale price from depots. On the basis of statements and alleged papers concluded that the appellant has received a sum of Rs. 6,45,10,075/- over and above the price declared in their return, which had resulted into evasion of duty amounting to Rs. 1,03,21,612/-. 3.2 Further, on the basis of print out obtained from the computer, which shows the name of 133 parties and amounts shown in their names was concluded that the appellant was sold the goods to 133 parties without payment of duty. Therefore, it was proposed to demand duty on account of clandestine removal of Rs. 2,61,95,174/-. On the basis of these investigations, a show-cause notice was issued to the appellant and the matter was adjudicated. A demand proposing the show-cause notice was confirmed against the said order, the appellant filed appeal before this Tribunal and this Tribunal remanded the matter back to the adjudicating authority vide final order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2010 (26) ELT 514 (All) and the Jindal Drugs - 2016 (340) ELT 67 (P&H) wherein it has been held that statements can be relied upon if the ingredients of Section 9D are complied with which requires that adjudicating authority is bound to examine all those persons whose statements have been relied upon. Despite repeated requests, the adjudicating authority allowed only cross-examination of the 3-4 officials and 2 panchas, but the cross-examination of the panchas was rejected saying that it is after thought. It is his submission that in view of the judgements of the Hon'ble Punjab & Haryana High Court, the statements cannot be relied upon. It is his submission that in the first round of litigation, this Tribunal has directed to the adjudicating authority to compare audited records of the appellants with the alleged records. But the adjudicating authority failed to comply with the direction of this Tribunal. It is his submission that the appellant was manufacturing and selling its product in addition to trading goods purchased from the market and the appellant has shown in their balance sheets, the value of purchase and sale. But the adjudicating authority has shown the receipt on co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s examination cannot be denied unless that is otherwise warranted by law. 13. We have further noticed from the argument of Ld. CDR that when the appellant had maintained private records that needs thorough examination and also parallel invoices if used for clandestine removal that needs thorough corroboration. When we read page 495 of the paper book, we find that ld. Adjudicating authority when used statement of certain persons, that definitely needs proper testing on the touch stone of law. The authority appears to have not appropriately examined the papers seized in the course of investigation. It would be proper for the appellant to point out with reference to the seized document calling for appropriate testing of the material used against it. 14. We would have kept this matter for further hearing calling pre-deposit. But we find that the appellant deserves a fresh hearing on each aspect of allegation in show-cause notice and test the evidence on record. But for dilatory tactics followed, to protect interest of revenue, following judgement of Hon'ble High Court of Punjab & Haryana in the case of Shiv Sewa Sadan Vs CESTAT, New Delhi reported in 2010 (254) ELT 249 (P&H), we di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the personal penalties are concerned, at this juncture, we do not preconceive that the appellants should face hardship. Since we have remanded the principal appeal, pre-deposit in their cases is waived and their appeals are also remanded to original authority for fresh adjudication. 16. We make it clear that when we heard there was allegation by the appellant that its computers seized were manipulated to get print outs therefrom, we do not approve such allegation without any basis and such contentions has not legs to stand". 9. As per the said order, the adjudicating authority was directed to compare the audited records of the appellants with the loose papers recovered during the course of investigation but no comparison thereof was conducted by the adjudicating authority in the impugned order. The contention of the appellant is that the appellant has done trading activity and to that effect they have produced purchase invoices and sale invoices with regard to the trading activity, the same has not examined by the adjudicating authority properly and in haste concluded that the appellant has undervalued the goods. Moreover, no statements of the buyers could obtain to allege unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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