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TMI Blog2019 (1) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... ession at the time of the search of premises on 13.02.2009 - Apparently and admittedly these documents were never returned to the appellant after the issuance of the SCN as was otherwise mandatory under Rule 24A of Central Excise Rules. Admittedly none of those documents were found incriminatory - the adjudication based on thirdy party evidence is not sustainable especially when in the adjudication against said third party there documents have already been observed as untrustworthy. Admission in the statement of Mr. Pawan Bansal - Held that:- No doubt admission is the best evidence unless and until the same is withdrawn. Admission of Mr. Pawan Bansal was withdrawn very next day with the allegations of coercion being exercised upon him while making him sign on statement of 13.03.2009 - the Commissioner is held to have definitely committed an error while still relying upon the statement of Mr. Pawan Bansal on 17.03.2009. The documents based whereupon the impugned adjudication has initiated are still under adjudication in view of the direction of this Tribunal vide Order dated 02.04.2018 - the present appeals be also remanded for denovo adjudication so that adjudication of prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded on 17.03.2009. It is submitted that the said statement was recorded under the dictation of the then investigation officer. The said Pawan Bansal vide his letter dated 18.03.2009 (the very next day) prayed for retraction of his statement. It is further impressed upon that the factum of the retraction has absolutely been ignored by the adjudicating authorities. 3.1 In addition it is submitted that the SCN was also issued to M/s Kamdhenu Ispat on 09.05.2011 demanding excise duty and another SCN dated 24.10.2011 was issued demanding service tax. These SCNs were adjudicated vide the order of Commissioner dated 05.09.2014 vide which he had dropped the major demand of ₹ 38 Crores approximately and the demand only of ₹ 43,74,987 was confirmed. Resultantly, the department as well as Kamdhenu went into Appeal. Those Appeals have been adjudicated by this Tribunal vide Order dated 02.04.2018 vide which the matter have been remanded back to the adjudication authorities below for the denovo adjudication observing that the data relied upon for initiating the SCN was not the trust worth data. It is impressed upon that since the same data has been considered by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant and has also discussed about the clear admission in the statement of Pawan Bansal qua the supply of ingots to M/s Kamdhenu even without any invoice /bill. It is impressed upon that there is no infirmity as alleged in the order under challenge. No. ground is apparent to even remand the matter for denovo trial. Appeals are therefore prayed to be rejected. 5. After hearing both the parties and perusing the record the appeals are adjudicated as follows: Admittedly, the SCN against the appellant has been issued based upon the documents which were recovered during the search of Kamdhenu Ispat Ltd. as was conducted on 11.11.2008. Based on the same documents that the SCN dated 09.05.2011 was served upon M/s Kamdhenu as well. The said SCN stands adjudicated by this Tribunal by order dated 02.04.2018. perusal of the said order para 9 specifically thereof reflects the following observations: Since the entire case is based on the data retrieved by the GEQD, we are of the view that the issue needs to be re-adjudicated after examining the concerned official of GEQD in a personal hearing in the presence of the assessee or his representative for the purpose of arriving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has proceeded the appellants ex-parte and has absolutely been silent about these submissions of the appellant. 8. Order under challenge has denied opportunity to appellants of cross examination by quoting a simple reason that no reason has been mentioned as to why the witnesses need to be cross examined by the appellant and that no evidence has been submitted for the same. But the adjudicating authority has failed to acknowledge that the entire relevant documentary evidence as could be produced by the appellant for any purpose was already taken in Department s possession at the time of the search of premises on 13.02.2009. Apparently and admittedly these documents were never returned to the appellant after the issuance of the SCN as was otherwise mandatory under Rule 24A of Central Excise Rules. It is also the admitted fact that the SCN is not based on any of the documents as were taken into custody while conducting search of the appellant s premises. Rather, admittedly none of those documents were found incriminatory. Hence, I am of the opinion that adjudication based on thirdy party evidence is not sustainable especially when in the adjudication against said third party there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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