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TMI Blog2021 (4) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... in favor of appellant. - Excise Appeal No. 51053 of 2019 [SM] - FINAL ORDER NO. 51185/2021 - Dated:- 23-3-2021 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) None appeared for the Appellant Shri P.Juneja, Authorised Representative for the Respondent ORDER None appeared for the appellant. However there is a written request on record praying for the decision on merits. Learned D.R. has submitted that there is no infirmity in Order of Adjudicating Authority below. The demand has rightly been confirmed. Appeal is prayed to be dismissed. 2. After hearing learned D.R. the record of present appeal including written submission of appellants is perused. For the disposal of appeal on merits the relevant factual matrix in brief ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice against Noticees No.1-5 alongwith interest and penalties. Proportionate penalties were also proposed against the suppliers of the raw-material to M/s. HIPL (Noticee No.5-27), including the present appellant. These raw-material suppliers including the appellant were also alleged to have resorted to wilful and intentional evasion of Central Excise duty to facilitate the buyer i.e. M/s. HIPL. 3.1 The quantum of clandestine removal by Noticees No.5 to 27 was summarised in the table at page No.97 of the impugned show cause notice and the amount of Central Excise duty indicated against their names and the said amount was proposed to be recovered from them alongwith the interest and the proportionate penalty. Accordingly, from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayed to be dismissed. 6. After hearing and perusing the record, I am of the opinion that it is the acknowledged fact that the appeal of M/s. Hari Om Ingots and Power Ltd. stands already adjudicated by the present Tribunal vide the Final Order No.51109-51125 of 2019 dated 22.08.2019. The copy of those decisions has been annexed by the appellant alongwith his synopsis. I do not find any reason to differ from those findings. The relevant para thereof is reproduced below:- 26. Relying on these judgments, we hold that the charges of clandestine removal of the goods cannot be upheld merely on assumptions and presumptions, but has to be proved with positive evidence such as purchase of excess raw materials, consumption of excess electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e data was burnt. I agree with the contention of the learned Advocate that at the time of the burning of CD(s), a certificate should have been obtained as per the provision of Section 36-B. The panchanama dated 19.02.2016 not only speaks of 2 CD(s) but also that computer data was retrieved after a gap of 4 years which itself creates a suspicion. Further also no certificate from the competent authority was obtained by the officers even at this point of time. The Hon‟ble Apex Court in case of M/s. Anwar P.V. Vs. P.K. Basheer reported at 2017 (352) E.L.T. 416 has clearly laid down that the computer printout can be admitted in evidence only if the same are produced in accordance with the provisions of Section 65B(2) of the Evidence Act. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AL EXCISE, COIMBATORE 2005 (183) E.L.T. 65 (Trib) (iii) JAYSHREE VYPASA LTD. VS. C.C.EX, RAJKOTE 2015 (327) E.L.T. 380 (Trib) (iv) AGARVANSHI ALUMINIUM LTD. VS. C.C.EX. 2014 (299) E.L.T. 83 (Trib) 7. It is also apparent that the shortage was detected on the basis of eye estimation and on average weight basis without any physical weighment, demand cannot be confirmed on the said basis. Above all present is the case of third party evidence. 8. Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence. The relevant case law in the case of Bajrangbali Ingots Steel Pvt. Ltd. Suresh Agarwal vs. CCE, Raipur in Appeal No. E/52062 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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