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TMI Blog2024 (6) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 13 of Annexure A to Panchanama which is admittedly not written by any of the partners but by Shri Triloki, ex-employee of Appellant. On plain reading of the statement of Shri Triloki dated 04.09.2012 we find that in reply to question No. 10 he stated that the data mentioned in Book No. 8,9,12 14 are of the orders received from the customers and the details of Book No. 13 are the details which were dictated by Shri Sureshbhai. The details recorded in the dairies were only showing type of machines and number of machines. The said diaries nowhere shown the details of transaction value, rate, details of buyers, details of transporter etc.. The entries made in the said diaries may create a doubt but it cannot take place of evidence. Merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been corroborated by detailed investigation. The allegation of clandestine manufacture and clearance cannot be sustained on the basis of such flimsy evidences - the impugned order is set aside - appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri P V Sheth Advocate for the Appellant Shri Rajesh R Kurup , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR Appellants have filed these appeals against the impugned order in-original No. RAJ-EXCUS-000-PR.COM-33-16-17 dated 14.10.2016 passed by the Principal Commissioner of Central Excise, Customs and Service tax, Rajkot. 1.1 Briefly stated the facts of the case are the appellant, M/s. Nishtha Automation is engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has concluded that the computer print-outs taken from laptop, the Chit Books and diaries recovered from M/s Nishtha Automation, contain details of their sale of finished goods without payment of duty. Being aggrieved, the Appellants have preferred the present Appeals before the Tribunal. 2. Shri P.V. Sheth Learned Advocate appeared on behalf of Appellants and submits that in the present matter duty is demanded on the bases of the details in Annexure IV of the Notice. On perusal to Annexure IV it appears that the duty on so called clandestine removal has been worked out as per entries and records available in diary seized as per Sr. No. 13 of Annexure A to the panchanama. As clarified by Shri Triloki in his statement dated 04.09.2012 in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Notification No. 8/2003-CE dated 01.03.2003 as amended was not available. However, he failed to consider the fact that the duty is not demanded on such ground and therefore, said observation is beyond the scope of the show cause notice and is accordingly liable to be set aside. 2.3 He placed reliance on the following decisions in support of his arguments and submission : - Bharmal Hardware Product and others- Final Order No. FO/A/10770-10771/2024 M/s Mansa Cigarettes Pvt. Ltd. Final Order No. A/11434-11439/2019 Patidar Products 2023-9-Centax-231(Tri. Ahd) M/s Mahendra Metal Industries Final Order No. A/10067-10068/2019 Oudh Sugar Mils Ltd. 1978(2)ELT (J172)SC Shri Krishna Industries 2020(372)ELT 121 (Tri. Ahd) Vishwa Traders Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the said details are related to the clandestine removal of the goods. Further, department failed to record the statement of Shri Sureshbhai and not interrogated him about the entry of the said records. We also find that the details recorded in the dairies were only showing type of machines and number of machines. The said diaries nowhere shown the details of transaction value, rate, details of buyers, details of transporter etc.. The entries made in the said diaries may create a doubt but it cannot take place of evidence. Merely on the basis of said diaries, or on mere statements of some persons, may even be responsible officials of the manufacturer or even of its Directors/partners who were not even permitted to be cross-examined, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon in the SCN. The appellant strongly made request before adjudicating authority for cross examination of persons, however request for cross-examination was refused on the ground that persons are also co-noticee and Learned Adjudicating authority also observed that the ample of evidence is available, therefore, no cross examination is required. We completely disagree with the adjudicating authority as in terms of Section 9D of the Central Excise Act, it is incumbent on the adjudicating authority to cross examine the persons whose statements were recorded by the investigating agency, only thereafter such statements can be used for adjudication of the SCN. Since admittedly the adjudicating authority has refused cross examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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