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A26 EXCISE LAW TIMES [ Vol. 372

not presented for cross-examination, was not sustainable in absence of any doc-
umentary evidence showing cash receipts from them particularly when such
statement was inconsistent as they had initially admitted cash payment to the
assessee through angadias/dealers but later on, had stated that the same was
handed over to their employee. The statement of co-accused not presented for
cross-examination, was not admissible in evidence.
The Tribunal had further held that merely excess consumption of natural
gas for manufacture of Ceramic Glaze Fritz could not be a ground to allege ex-
cess manufacture and clearance of goods when there is no evidence of excess re-
ceipt, processing or consumption of other raw materials.
The Tribunal had also held that the parallel invoices having different
format from the invoice format of the assessee were not reliable in absence of any
corroborative evidence such as clearance and transportation of goods, though
buyer had accepted receipt of goods.
REPRESENTED BY : Mr. Vikramjit Banerjee, ASG, Mr. A.K. Srivastava, Sr.
Advocate, Mr. B. Krishna Prasad, AOR, Ms. Vishakha
and Ms. Aruna Gupta, Advocates, for the Appellant.

(1) Clandestine removal and undervaluation, sufficiency
of third party evidence?
(2) Cenvat credit — Evidence for fraudulent availment
without receiving goods, sufficiency thereof?
The Supreme Court Bench comprising Hon’ble Mr. Justice A.M.
Khanwilkar and Hon’ble Mr. Justice Dinesh Maheshwari on 30-9-2019 after con-
doning the delay admitted the Civil Appeal Diary No. 32176 of 2019 filed by
Commissioner of Central Excise and Service Tax, Alwar against the CESTAT Fi-
nal Order Nos. 50500-50505/2019, dated 10-4-2019 as reported in 2020 (372)
E.L.T. 129 (Tri.-Del.) (Synergy Steels Ltd. v. Commissioner). While admitting the
appeal, the Supreme Court passed the following order :
“Delay condoned.
Appeal is admitted.”
The Appellate Tribunal in its impugned order had held that third party
evidence relied by department for alleging clandestine removal and undervalua-
tion was not sufficient to hold these charges. It was held that demand based only
on certain loose slips/pages resumed from third party i.e. consignment agent, on
which appellant’s name did not appear cannot sustain. Further, statement of said
consignment agent also not reliable evidence in absence of his cross-examination
in terms of Section 9D of Central Excise Act, 1944. In absence of corroborative
evidence, demand was held not sustainable.
It was also held that there was no evidence that goods on which Cenvat
credit had been taken, had not been received in the unit. No investigations were
conducted either from suppliers of inputs/raw material mentioned in invoices or
from transporters to establish charge of non-receipt of goods.
In respect of department’s appeal of against dropping of some portion of
demand by adjudicating authority on undervaluation of SS Flats, Tribunal up-
held adjudication order in absence of corroborative evidence. It was held that

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