The Kolkata bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that no testimony of a witness can be treated as a relevant piece of material or evidence which does not follow the procedure under section 9D of the Central Excise Act,1944.
Attitude Alloys Private Ltd, Arun Kadmawala, and Sitaram Agarwal, the appellant assessee were a company that manufactured and cleared the Ferro Silico Manganese from their factory.
The assessee appealed against the order passed by the adjudicating authority for confirmation of the demand of excise duty based on computerized data maintained by the computer operator of the Ajay Behera which had been retrieved from a pen drive recovered from one of the office table drawer of Behera, during search of office premises and for the imposition of penalties against the assessee.
Kartick Kurmy, the counsel for the assessee contended that oral statements cannot be a relevant piece of material without testing the same under Section 9D of the Central Excise Act and the provisions of Section 9D of the Central Excise Act were mandatory and unless the prescriptions comply, the testimony of a witness cannot be treated as a relevant piece of material or as relevant evidence.
S. Mukhopadhyay, the counsel for the department relied on the decisions made by the lower authorities and contended that the oral statements by the assessee were incriminating evidence and the recovery of the pen drive also was relevant evidence to raise the excise duty demand.
The Bench observed that the statements recorded in this case had lost their evidentiary value by not following the provisions of Section 9D of the Central Excise Act. Thus, the procedure set out in Section 9D of the Central Excise Act had not been followed in this case.
The two-member bench comprising Ashok Jindal (Judicial) and Anpazhakan (Technical) held that the testimony of a witness cannot be treated as a relevant piece of material unless it follows the procedure set under section 9D of the Central Excise Act.
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