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TMI Blog2019 (12) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that though the appellants received the relied upon documents, but they have been aggrieved of those not being legible. Legible copies thereof were insisted but were never made available. Adjudicating Authority below is observed to have ignored the repeated requests of the assessees for the legible documents. Copies of documents though are on record but perusal makes it clear that many of them are not at all legible. Denial of cross-examination - HELD THAT:- The denial of coss-examination in the given circumstances is opined to be unfair and unjustified. The order under challenge records that, the case is mainly based on the record of M/s.BRMPL, which is duly corroborated by the statements of directors of BRMPL and the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate the facts and records and apply the law correctly. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50123 of 2019, 50124 of 2019, 50273 of 2019 [SM] - Final Order Nos. 51733-51735/2019 - Dated:- 24-12-2019 - HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Mr. Santhanam, Advocate, Ms. Jwaria Kainaat, Advocate for the Appellant Mr.K. Poddar, Authorised Representative for the Respondent ORDER RACHNA GUPTA 1. Present order disposes of three appeals arising out of common Order-in-Appeal bearing No. 493-495 (SM) CE/JPR/2018 dated 27.11.2018 (the order under challenge). The facts leading to these appeals are as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o alleged to have suppressed the information of such manufacture and clearance from the Department and adopted all fraudulent means to clear the manufactured goods secretly and willfully. 1.3 Resultantly, a show cause notice bearing No.6034 dated 28.02.2016 to M/s. Shree Jagdambay Castings Pvt. Ltd., its Director Shri Pawan Bansal and to M/s.BRMPL proposing recovery of Central Excise Duty amounting to ₹ 9,68,004/- alongwith the interest and the penalty upon M/s. Shree Jagdambay Castings Pvt. Ltd. with the simultaneous proposal of imposition of penalty on Shri Pawan Bansal, Director of M/s. Shree Jagdambay Castings Pvt. Ltd. and BRMPL was served upon three of the appellants. 1.4 The said proposal was init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence penalties imposed in the present case are not sustainable. While out-rightly denying the allegations of clandestine purchase of raw material and clandestine removal of manufactured goods, the appellants have prayed even for setting aside the order confirming the demand of excise duty. The order under challenge is accordingly prayed to be set aside and the appeals are prayed to be allowed. 4. While rebutting these arguments, it is submitted on behalf of the Department, that the order under challenge has been announced based on the sufficient amount of evidence as gathered during the searches of various premises of the appellants. The first appellate authority has already extended some relief to M/s. BRMPL. There is no inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut no such record and the corroboration thereof has been specified by the adjudicating authority below. 6. The law is well settled that in respect of any allegation of clandestine removal the onus is squarely and solely on the Revenue to prove what it alleges and that onus of the revenue cannot be shifted to the assessee. The assessee cannot be called upon to prove the negative. There is no investigation whatsoever or any proof brought on record by the revenue in regard to the alleged clandestine production and unaccounted removal of excisable goods by the assessee. Mere allegation by the Revenue cannot take the place of proof. Suspicion however grave cannot be taken as the basis to confirm demand by alleging clandestine rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned orders which are liable to be vacated in this appeal as non-est. The adjudicating authority is held to be wrong in merely repeating the allegations made in the show cause notice without any understanding of facts and law. 8. There is no iota of evidence apparent on record specifically to the corroboration of the software data recovered during search. There is no compliance of Section 36B of Central Excise Act Sub Clauses (2) (4) prescribes very stringent conditions for Computer Printouts to be a piece of admissible evidence. Not even Section 45A has been resorted as there is no apparent opinion of examiner of electronic evidence. The sole relied upon evidence as corroboration to the documents recovered and their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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