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TMI Blog2024 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... the concerned official of GEQD was not examined by the adjudicating authority and, therefore, the matter was remanded directing it to be re-adjudicate after examining the concerned official of GEQD in a personal hearing in the presence of the assessee or its representative for the purpose of arriving at the proper conclusion on the veracity of the data retrieved. It was also recorded in the first round of litigation that the adjudicating authority had doubted the data and further remarked that the laptops and other devices were possibly manipulated in the office of the DGCEI. While passing the impugned order the Principal Commissioner specifically declined to examine and allow cross-examination of the officials of GEQD on the ground that G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mishra, Advocate for the Appellant Shri Unmesh Kumar, Authorised Representative for the Respondent ORDER The Order-in-Original dated 12.01.2022 passed by the Commissioner of CGST, Alwar in the de novo proceedings is assailed by M/s Balaji Furnaces Pvt. Ltd. [The assessee] and Shri Navnitya Prakash Goyal [Prakash], Director. The assessee is assailing the demand of central excise duty of Rs.68,86,290/-under section 11A(4) along with interest and imposition of penalty of equal amount under section 11AC. Prakash is assailing the penalty of Rs.20,00,000/- imposed on him under rule 26(1) of Central Excise Rules, 2002 [The Rules]. 2. The facts which led to the issue of the impugned order are that the Directorate General of Central Excise Intelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt dated 25/02/2009 by the GEQD. The Adjudicating Authority has doubted the veracity of the retrieved data. He has come to the conclusion that these Laptops other devices were possibly manipulated in the office of the investigating agency i.e. DGECI, the investigating agency. During the course of arguments, the Ld. DR has drawn our attention to the detailed report dated 25/02/2009 received from GEQD. He has highlighted from the report that the data file was written on 18/10/2008, which was held as modified on 13/11/2008 by the Commissioner. From the record we also find that the concerned official of GEQD has not been examined by the Adjudicating Authority. Since the entire case is based on the data retrieved by the GEQD, we are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn by DGCEI at the place of the assessee and the place of Kamdhenu (RUD-1 and 8). 6. One RUD is an account of payment of central excise duty by the assessee through its RG-23A part-II account (RUD-11), one is summons issued to Shiv Prakash (RUD-9). Four are statements of different persons recorded under section 14 under the Central Excise Act, 1944, and the remaining three are the import purchase file, (RUD-2) of Kamdhenu, data retrieved by DGCEI on pen-drive (RUD-6) and data retrieved by GEQD, Hyderabad (RUD-7). 7. As far as the four statements relied upon in the show cause notice are concerned, learned counsel submits that these statement are not relevant to the case because the procedure prescribed under section 9D of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of record and are included as RUDs Intended for the sake of completeness. 10. The data on the basis of which the allegations of clandestine removal has been confirmed and the duty has been demanded and penalties have been imposed against the assessee are (a) the ingot purchased file of Kamdhenu; (b) the data retrieved from pen-drive and the PCU and Laptop; and (c) the data retrieved by GEQD as above. 11. As far as the data retrieved by the GEQD is concerned, it has specifically been recorded in this Tribunal s order dated 02.04.2018 in case of Kamdhenu that the concerned official of GEQD was not examined by the adjudicating authority and, therefore, the matter was remanded directing it to be re-adjudicate after examining the concerned offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescribed under section 36B of the Central Excise Act was not followed with respect to the data retrieved from the several computers by the officers of DGCEI. Therefore, such data is not admissible as evidence. 14. After excluding the report of GEQD, the data retrieved from the pen-drives by DGCEI and the statements recorded under section 14 of the Excise Act by various persons due to clear non-compliance of the mandatory statutory requirements by the Commissioner, the only RUD left is an ingot purchase file recovered from Kamdhenu, in which the appellant s name is indicated. 15. In our considered view, this sole document is not sufficient to either charge the assessee with clandestine removal or to recover duty from it. Consequently, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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