TMI Blog2012 (9) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... al)]. Since common question of law and facts arise in all these appeals, they were heard together and are being disposed of by this common order. 2. We have heard at length the learned Advocate for the appellants and the Joint CDR and perused the records. 3. The present appeals arise from order dated 25-10-2004 passed by the Commissioner, Ghaziabad. By the impugned order, while holding that the appellants are guilty of clandestine removal of goods, duty demand of Rs. 4,96,14,497/- has been confirmed against the appellants alongwith interest thereon and equal amount of penalty. Confiscation of the plant, building machinery of the appellants has also been ordered with liberty to redeem the same on payment of redemption fine of Rs. 10 lakhs. Further, penalty of Rs. 2 lakhs has been imposed against each of the three Directors. Being aggrieved by the said order, the appellants have preferred the present appeals. 4. Pursuant to the visit to the premises of the appellants at Ghaziabad on 13-11-2011 and on perusal of the records pertaining to the raw material, the Department was able to get the following details in relation to the period from 1998-99 to 2001-2002 and conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever was given to the said documents. It is their further case that, there has been no verification done of such defence raised by the appellants by perusal of the records at their head office at Delhi. It is also the contention on behalf of the appellants that no investigation has been done regarding disposal, sale or distribution of the final product by Ghaziabad unit which was disclosed under the balance sheet. It is their further case that, though the cross-examination of the witnesses was asked for, the same was refused without any justification. In view of non-corroborated statements, according to the learned Advocate, the authority below erred in relying upon them. It is also the case of the appellants that, though the claim related to the period from 1998 to 2002, the show cause notice was issued only on 26-3-2003, which was beyond the period of limitation, and that there was no case for invoking extended period of limitation. The liability to pay penalty is also sought to be disputed on behalf of the appellants. Reliance is sought to be placed in the decision in the matter of Electronic Control Corporation v. C.C.E., Cochin reported in 2006 (197) E.L.T. 291, Devi Rubber Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the undisputed statements regarding the quantity of production at Ghaziabad, there is hardly any room to doubt about the conclusions, which have been arrived at by the authority below about clandestine removal of goods without payment of duty from Ghaziabad factory. Mere disclosure of sale of the final product by each of the units in the balance sheet, itself cannot amount to rebutting the presumption which arises against the appellants regarding the clandestine removal of the goods from Ghaziabad factory. The Jt. CDR submitted that it is pertinent to note that the employees have clearly admitted in their statements that the production of the final product is one to one co-relation in comparison to the raw material in the premises. He further submitted that there was no question of granting any cross-examination as it was not disclosed for what purpose the cross-examination was required. He placed reliance in the decision of M.R. Compound Allied Products (P) Ltd. v. C.C.E., Kanpur reported in 2008 (227) E.L.T. 375, Super Tyres Pvt. Ltd. v. C.C.E., Panchkula reported in 2009 (244) E.L.T. 363 and Shalini Steels Pvt. Ltd. v. C.C.E., Hyderabad reported in 2011 (269) E.L.T. 485. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently transferred to factories at Delhi after cleaning and sieving as per directions received from head office is prima facie incorrect as it is fact on record that no records of raw tobacco were being maintained at Mohannagar. Such claim of receipt and transfer of raw tobacco from Mohannagar unit to their other unit does not appear practicable or feasible on a day to day basis for as long as five years, when no account/record of raw tobacco was being maintained at Mohannagar . In short, the contention sought to be raised by the appellants in response to the charge of clandestine removal has been disbelieved essentially on. two grounds, namely, that no record of raw tobacco was maintained at Mohannagar and consequently that it is difficult to believe that the practice of transfer of such raw material to such units was being followed for a period of five years. Undoubtedly, the finding is also accompanied by reference to the statements of the witnesses recorded at the relevant time. There can be no grievance made about the failure on the part of the assessee-appellants to produce cogent evidence regarding the transfer of raw materials to the factory at Delhi. But, at the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same cannot be construed as an evidence against such party. Merely because the plea in that regard was not specifically raised in the course of recording of the statements, that cannot bar the appellants from placing appropriate defence in answer to the show cause notice. If there is a case of afterthought in relation to the any plea raised in answer to the show cause notice, certainly the Department can establish the same by disproving it either by producing necessary evidence in that regard or by pointing out the essential lapse on the part of the assessee in establishing such plea. As already seen above, the fact that all three other units had manufactured same product is not in dispute, there is nothing on record to show that for the purpose of manufacture of such final product in those three units the appellants had procured raw material from sources other than supply of raw material from its units at Ghaziabad. Being so, we find it difficult to sustain the conclusion that whatever raw material was received at Ghaziabad must have been used only at Ghaziabad only and was not transferred to other units in Delhi. The onus lies on the part of the Department to bring cogent evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. [Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee - (1977) 2 SCC 256]. Whether any particular facet of the principles of natural justice would be applicable to a particular situation, or whether there has been any infraction of the application of that principle, has to be judged in the light of the facts and circumstances of each particular case. The basic requirement is that there must be fair play in action. [K.L. Tripathi v. State Bank of India - (1984) 1 SCC]. The doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula, and its application depends upon the nature of the jurisdiction conferred on the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the authority rejecting cross-examination, the decision sought to be relied upon also lends support to the department case in this regard. 15. In M.R. Compound Allied Products case, the Tribunal while dealing with the relevancy of raw materials found in the factory of the assessee, to support of the case of the clandestine removal, had held thus :- 5. We find that in this case admitted position is that the appellants are storing raw material as well as excess goods and finished goods in the premises which are not disclosed to the Revenue. In respect of the loose sheets showing the production and clearance of the goods which were not reflected in the statutory record, we find that the documents were recovered from Shri Devesh Rajan and Shri Karan Singh and who explained the entries. Shri Devesh Rajan accepted the entries and admitted manipulation on the advise of Shri S.K. Gupta, Managing Director. In these circumstances as the excess goods were found in the truck which were packed in systematic way to conceal the actual weight and recovery of excess raw material valued at Rs. 8,39,196/- and packing material valued at Rs. 15,10,222/-. In addition to this, the excess fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncovered from the despatch advices with corresponding GR numbers of despatches from the branch offices. (g) The statutory records maintained by them for excise purposes do not reflect the true position. The appellant has not disclosed the maintenance of private records like stock register, Rubber Board register. Mixing Formulation register maintained by them. (h) The private records like, the Mixing Formulation Register, Batch Register/Stock Register, Typed List , and Abrasion Note Book relate to the day to day activities of the appellant company . 18. Having taken note of the above facts, the Tribunal held that if the above facts and circumstances are taken in totality, on the yardstick of preponderance of probability, the conclusion reached by the Commissioner that the appellant has indulged in suppression of production and clandestine removal appears legal and proper . In the case in hand, we have already pointed out the missing links and the same being sufficient to accept the contention sought to be raised on behalf of the appellants. Being so, this decision also can be of no help to the respondent. 19. As regards various decisions sought to be relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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