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TMI Blog2020 (2) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002. Revenue s case is based on the records recovered from M/s PIL and the statement of Shri Pankaj Agarwal. In terms of Section 9D of Central Excise Act, 1944 the Revenue was required to produce Shri Pankaj Agarwal in their defence to testify the documents recovered and the statement made by Shri Pankaj Agarwal are true and correct and thereafter the appellant was required to be offered for cross-examination of Shri Pankaj Agarwal. As the said act has not been done by the Adjudicating Authority, therefore, in terms of Section 9D of the Act, the evidence relied upon by the Revenue have no value in the eyes of law. As Revenue has failed to produce any supporting evidence in their favour, therefore, the charge of clandestine removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the appellants was also proposed to be imposed. The matter was adjudicated, demand of duty was confirmed alongwith interest and penalty on both were imposed. Against the said order, the appellants are before me. 3. The learned Counsel for the appellant submits that case has been made out against the appellant on the basis of third party records and no investigation was carried out in the factory premises or records of the appellant to ascertain the fact that appellant are engaged in activity of clandestine removal of goods or not. Moreover, the records recovered from M/s PIL having the full details of transporter etc., but no investigation was conducted as to that extent to ascertain transportation of goods from the appellants to PI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval of goods. The said allegation is based on the record recovered from M/s PIL who is third party in this case. Strangely no show cause notice has been issued to PIL to impose penalty under Rule 26 of Central Excise Rules, 2002. Further, I find that Revenue s case is based on the records recovered from M/s PIL and the statement of Shri Pankaj Agarwal. In terms of Section 9D of Central Excise Act, 1944 the Revenue was required to produce Shri Pankaj Agarwal in their defence to testify the documents recovered and the statement made by Shri Pankaj Agarwal are true and correct and thereafter the appellant was required to be offered for cross-examination of Shri Pankaj Agarwal. As the said act has not been done by the Adjudicating Authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for clandestine removal of the goods. With regard to the statement of the assessee recorded during the course of investigation, I find that the statement has also been altered and the assessee in his statement repeatedly has said that he is selling the goods against the invoices on payment of duty. Merely making some deposit during the course of investigation on persuasion of the departmental officers does not corroborate that the assessee has cleared the goods clandestinely. In the absence of any corroborative evidence to allege clandestine removal of the goods against the assessee, the charge of clandestine removal of the goods is not sustainable. Moreover the Revenue has not implicated Shri Anil Kumar in the proceedings for his act of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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