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TMI Blog2020 (1) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... ication report, its evidentiary value looses its significance, especially in view of the fact that the RG-1 Register and Form-IV Register were incomplete after 31.08.2006. The appellant has taken Cenvat Credit on the basis of prescribed document as per Cenvat Credit Rules and therefore the impugned order is not correct in denying the same. Reliance placed on the various statements of the different persons, which were recorded during the course of investigation - HELD THAT:- The Commissioner has not examined the maker of the statements and not permitted the cross-examination of those persons by the main appellant in spite of being specifically requested for. This is in clear violation of statutory provisions as contained in section 9D of Central Excise Act - lot of reliance has been placed on the record of transporter M/s.Rush Cargo Movers. However, this is third party evidence, which cannot be relied without corroborative evidence. Appeal allowed - decided in favor of appellant. - Excise Appeal No.264 of 2009, 265 of 2009, 266 of 2009 - FINAL ORDER NO. 77034-77036/2019 - Dated:- 23-12-2019 - HON BLE SHRI P.K. CHOUDHARY, MEMBER(JUDICIAL) AND HON BLE SHRI BIJAY KUM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be short by 0.250 MT valued at ₹ 25,705/-. A stock of finished goods manufactured by the appellant was also found to be short by 9,79,500 pieces of sacks along with shortage in rejected wastage/scrap to the extent of 43.247 MT valued at ₹ 1,86,410/- along with the shortage of rejected odd size bag of 4.300 MT, which was valued at ₹ 4,98,515/-. The departmental officer also found that the Daily Stock Account (RG-1) and Raw Material Account (Form-IV) was maintained only up to 31.08.2006. During the enquiry various documents relating to production, clearance, raw material etc. were resumed for verification from main appellant (BRIL) through their Authorized Representative Shri Suman Kumar, who in his statement dated 15.09.2006 agreed with the stock position arrived by the Central Excise officer. The departmental officer also found that the main appellant collected VAT @ 4% from the buyer which they were availing exemption under the provisions of VAT Rule and failed to include that amount in the assessable value of the goods for payment of Central Excise duty. 4. During the course of enquiry, statements of following persons were recorded under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken into consideration while passing the impugned order. 7. Learned Consultant further submits that the reliance was placed on the statement of Shri R.K.Mishra, partner of M/s.Rush Cargo Movers, the transporter of the appellant company. The appellant wanted to cross-examine Shri R.K.Mishra, however, the learned adjudicating authority has not permitted the cross-examination of Shri Mishra without assigning any reason in the order. Reliance was placed on the decision of M/s.Gonterman Peipers (India) Limited v. Commissioner of Central Excise, Kolkata-VII (Final Order No.77772- 77773/2007 DATED 08.11.2012. It was also submitted that the learned adjudicating authority has not examined the persons whose statements were relied upon in passing the impugned order contrary to the statutory provisions of section 9D of Central Excise Act, 1944. In absence of such examination and cross-examination, the statement on which Revenue seeks to rely have to be excluded from the evidence adduced by the department. Similarly, the statement of Shri R.K.Mishra is also not to be relied upon for want of compliance of provisions of section 9D(1) of the Central Excise Act. 8. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the unit. Thus the sale tax paid has been clarified to be excluded from the assessable value of the goods. Reliance was also placed on the decision of Tribunal in the case of Super Syncotex (India) Ltd. v. Commissioner of Central Excise, Jaipur reported as 2003 (160) E.L.T. 859, which was affirmed by the Hon ble Supreme Court reported as 2014 (301) ELT 273 (SC). 13. Regarding the second issue, we find that the stock verification report was not conducted by the visiting officer, but simply the statement was asked to be prepared by one of the employee of the appellant namely, Shri Suman Kumar Mishra, Excise Clerk along with Shri Manoj Kumar Pandey and Shri Uday Kumar, all employee of the main appellant (BRIL). As the stock verification report was not done on the physical weighment basis and even not verified by the Central Excise officer as is evident from the stock verification report, its evidentiary value looses its significance, especially in view of the fact that the RG-1 Register and Form-IV Register were incomplete after 31.08.2006. Similarly we place our reliance in holding so on the decision of the Tribunal in the case of D.M. Gears Pvt.Ltd. (supra), wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would follow from these provisions that any statement of any person recorded under Section 108 of the Customs Act should be signed by any gazetted officer of Customs and any statement of any person recorded under Section 14 of the Customs Act should be signed by an officer of Central Excise empowered by the Central Government. In other words a statement recorded under Section 108 of the Customs Act and signed by a non-gazetted officer of Customs will not be admissible as evidence for the relevant purpose under that Act. Similarly, a statement recorded under Section 14 of the Central Excise Act and signed by an officer of Central Excise not empowered for the purpose will also not be admissible as evidence. It would follow as a corollary that, if any statement of any person recorded under Section 108 of the Customs Act or under Section 14 of the Central Excise Act does not bear the signature of any departmental officer and does not disclose the identity of the officer who recorded the statement, it will not be admissible in evidence. The ruling of the High Court in the cited case is on this point. Therefore, the reliance placed by the adjudicating authority on those statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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