1 cexa107-06 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.107 OF 2006 The Commissioner of Central Excise, Mumbai – V ..Appellant. Versus M/s.Extrusion Process Limited ..Respondent. Ms.S.I. Shah with Mr.J.B. Mishra for the appellant. Mr.Madhur R. Baya for the respondent. CORAM : J.P. Devadhar & Mrs.Mridula Bhatkar, JJ. DATE : 5th January, 2011. P.C. : 1. In the present case, on physical verification it was found that there was shortage of Modvat inputs and capital goods in the factory premises of the respondent – assessee. Though the officers of the assessee admitted the shortage in their statement recorded during the course of search, the assessee produced several documents during the course of assessment proceedings to show that there was no shortage. However, the adjudicating authority declined to look into these documents on the ground that they were produced as an after-thought and confirmed the demand. The Tribunal deleted the demand without considering the documents furnished by the assessee. 2 cexa107-06 2. In these circumstances, Counsel on both sides agree that the impugned orders be set aside and the matter be restored to the file of the adjudicating authority for fresh decision after considering all materials on record. It is well established in law that the statement recorded can be proved wrong by adducing cogent evidence to the contrary. In the present case, none of the authorities have considered the documents produced by the assessee to prove that the statement recorded to the contrary are erroneous. Without considering the materials, no order could be passed. 3. In the result, the order-in-original dated 28-11-2001, order of Commissioner of Central Excise (Appeals) dated 31-01-2003 and the order of CESTAT 2-9-2005 are quashed and set aside and the matter is restored to the file of the adjudicating authority. The adjudicating authority is directed to pass a fresh adjudication order in accordance with law after hearing the assessee. 4. The appeal is accordingly disposed off. No costs. (Mrs.Mridula Bhatkar, J.) (J.P. Devadhar, J.)