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TMI Blog2024 (8) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that what has been given as a electricity consumption based on a formula by Dr. Batra cannot be applied to all the manufacturers having various capacities and different machineries to arrive at the quantification of production. Therefore, this method of ascertaining the clandestine manufacture based on the electricity consumption was discarded by the Tribunals and the High Court. In the present case, the Revenue has not applied any formula given by Dr. Batra, IIT professor, but has actually worked out the electrical consumption for the five months period starting from November 2010 to March 2011 and then worked out the average consumption. This consumption has been used to arrive at the quantification of manufacture for the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ER (JUDICIAL) AND MR. RAJEEV TANDON, MEMBER (TECHNICAL) Shri Kartik Kurmi Ms Ritika, both Advocates for the Appellant Shri K. Chowdhury, Authorized Representative for the Respondent ORDER The Appellant Pasari Steel Pvt. Ltd. is engaged in the manufacture of MS Ingots falling under Chapter 72. DGCEI conducted simultaneous searches at the factory and office of PSPL on 30/03/2011 and recovered several documents and other records and prepared panchanama towards the same. The statement of Shri Manoj Kumar, staff working in the office of PSPL, Shri Tuntu Agarwal, Rajendra Pasari and Shri Anand Lal Pasari were all recorded under Section 14 of CEA, 1944. After the necessary verification and investigation, the Show Cause Notice was issued to the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Anandlal Pasari, Director and Shri Tuntun Agarwal, cousin brother of Shri Anandlal Pasari, have been relied upon in the case without testing these statements in accordance with Section 9D of the CEA, 1944. Therefore, these statements lose their evidentiary value and their relevance. He relies on the case law of Hi Tech Abrasives Ltd v. CCE-2018 (362) ELT 961, wherein it has been held that if the statements recorded under Section 14 are not subjected to verification in terms of Section 9D, the same cannot be admitted as evidence. 4. In view of these submissions, he prays that the present appeal may be allowed. 5. The Learned AR submits that the DGCEI officials have taken up detailed verification and investigation in the factory premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. 6. Heard both sides and perused the appeal papers and the other documents made available to us by both the sides. 7. Admittedly, the investigation was taken up by the Department after their visit on 30/03/2011 to the office and factory premises of the Appellant Company. The Department has recovered several documents and the same have been recorded in the Pancharama drawn by the Revenue. The Department has also recorded the statements of various officials of the Appellant Company. 8. We find from the documents available in the Appeal papers that during the period November 2010 to March 2011, i.e. for five months, the Department has seized documents No. 18 and 30 wherein the daily statements of sale and purchase have been recorded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e based on the electricity consumption was discarded by the Tribunals and the High Court. 11. On the other hand, in the present case, the Revenue has not applied any formula given by Dr. Batra but has actually worked out the electrical consumption for the five months period starting from November 2010 to March 2011 and then worked out the average consumption. This consumption has been used to arrive at the quantification of manufacture for the other period under question. Therefore, we are unable to agree with the appellant that the cited case law of R.A. Castings would be applicable in the present case. 12. However, we see force in the appellant's argument that the statements recorded by various officials have been relied upon by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case. (iii) Statements recorded during investigation, under Section 14 of the Act, whose makers are not examination-in-chief before the adjudicating authority, i.e., before Respondent No. 2, would have to be eschewed from evidence, and it would not be permissible for Respondent No. 2 to rely on the said evidence while adjudicating the matter. Neither, needless to say, would be open to the Revenue to rely on the said statements to support the case sought to be made out in the show cause notice. (iv) Once examination-in-chief, of the makers of the statements, on whom the Revenue seeks to rely in adjudication proceedings, takes place, and a copy thereof is made available to the assessee, it would be open to the assessee to seek permission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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