Order dated: 07 October 2022 

• The appellant, M/s Metal Gems, are engaged in the manufacture of Copper and Copper Alloy articles. 
• It was alleged that the Appellant are clearing the goods without cover of the Central Excise invoices, without payment of Central Excise Duty and without accounting for the same, in the books of account. 
• Searches were conducted by the officers of DGCEI at the premises of M/s Metal Gems and M/s Moongipa Roadways Pvt. Ltd. and also seized several records and documents. The officers recorded the statements of various persons including employees and partners of the Appellant and also the transporters, amongst others. 
• The appellant was imposed Central Excise duty along with penalty and interest with respect to the impugned goods. The authority on the request of the appellant denied disclosure of documents seized and cross examination of evidences. 

Issue 

• Whether the act of Adjudicating Authority is violation of the principles of natural justice? 

Order 

• The Tribunal observed that the Appellant on requesting the adjudicating authority to provide the copy of relied upon and non-relied upon documents, the same was not considered and impugned order was passed confiscating the goods, confirming duty demand and imposition of penalty. The entire procedure followed by the authorities appears to be in gross violation of the principle of natural justice. 
• Considering the case of Basudev Garg v. Commissioner of Customs it was observed that the lower Adjudicating Authority had failed to follow the requirement of Section 9D of the Act regarding examination in chief of witness. As per the provisions of section 9D it is clear that during adjudication, the adjudicating authority is required to first examine the witness in chief and also to form an opinion that having regard to the facts and circumstances of the case, the statements of the witness are admissible in evidence. Thereafter, the witness is offered to be cross-examined. 
• Further the procedure a prescribed in Section 9D has not followed by the Ld. Adjudicating Authority and therefore, the impugned order is not sustainable in view of ratio laid down in case of M/s. G-Tech Industries v. Union of India 
• The charges of clandestine removal of the goods cannot be upheld merely on assumptions and presumptions, but has to be proved with positive evidence. All these material evidences are missing in the present case and the evidences brought into the record by the department are incomplete, inconsistent and not a reliable piece of evidence to prove charges of clandestine removal . 
• Impugned order is set aside and appeal is allowed