TMI Blog2018 (7) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... n clandestine clearance of the goods and was evading the payment of duty. However this determination itself is not sufficient to fasten the demand of duty on the appellant. The quantum of goods clandestinely cleared and duty evaded need to be determined on the basis of the principles/ evidences admissible in law. Till the time such a determination is done the mere fact of clandestine clearance is not sufficient confirm the demand - In the present case since the quantification of entire demand against the appellant is based on the quantum of purchases made as stated by the purchaser of the finished goods in their statements, there can be no justification for denial of cross examination as requested by the appellant. In similar situation in the case of Alliance Alloys Pvt Ltd Vs Commissioner Of Central Excise Delhi [2016 (7) TMI 153 - CESTAT CHANDIGARH], this Tribunal has been remanding the matter to the adjudicating authority for allowing the cross examination of the witnesses. This is a case where entire quantification of demand is based on the statements of the purchaser the request for cross examination of the persons tendering the statements should have been allowed, in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2004 respectively; g Notebook at Sl No 15 contained the details of daily expenditure made in the factory; 3.0 During the course of investigation and scrutiny of records resumed it transpired that appellants have been clandestinely clearing the finished goods namely plastic bags to various traders by raising Kachcha Chiththi/documents. Further certain parallel invoices were obtained from the octroi department substantiated the fact that appellants were indulged in clandestine clearance of the finished goods to various traders. In follow up action searches were conducted at the premises of various traders/ recipients of the finished goods. Statements of the said traders/ recipients of the goods were recorded. Details of the said searches and the purchases made by the said trader are indicated in table 1 below: Table 1: Quantum of Purchase made by the Traders Amount in Rs S No Name of the Trader Date of Search /Statement Monthly Purchase (Rs) 1 M/s Gurunanak Plastics 16.08.2004 50,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Sarda Packaging 1,50,000 4,50,000 13,50,000 4 M/s Bharat Plastics 8,000 96,000 5 M/s Mukesh Sales 1,75,000 2,00,000 24,00,000 24,00,000 6 M/s Aadinath Traders 25,000 50,000 3,00,000 7 M/s Aalumal Jayaramdas 1,000 12,000 8 Shri Radheshyam Soni 25,000 30,000 3,60,000 9 M/s Yogita Plastics 8,000 96,000 1,20,000 10 M/s Sham Plastics 2,000 36,000 11 M/s M Traders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. 6.0 During the Personal Hearing held on 25.07.2007, Shri Ashok Sarda Partner and Shri G L deshpande Advocate appeared and requested for cross examination of the supplier of raw material and purchaser of finished goods, whose statement has been relied for issuing the show cause notice. However Counsel agreed to restrict the list of persons to be cross examined (Para 21.3 of Order in Original). On 27.7.2007 they submitted reproducing the entire list of witnesses whose statement has been recorded and relied in the show cause notice for cross examination. Out of the 15 witnesses they requested that they should be allowed to cross examine at least one supplier of raw material and any four alleged buyers of finished goods. Adjudicating authority allowed cross examination of the witnesses and accordingly following cross examinations were done on the date as indicated in table 3. Table 3: Cross Examinations S No Person Cross Examined Status Cross Examination Date 1 Sh Ashok Singhvi Purchaser 29.09.2007 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Annexure to the show cause notice wherein the quantum of goods cleared clandestinely has been calculated and showed that the same was based on the statements of the purchaser of the finished product. He stated that in their statements an imaginary figure of monthly purchases by each of the said purchaser has been made the basis for computing quantum of clandestine clearance and demand of duty. Accordingly he requested that the his appeal should be allowed as there is no corroborative evidence to substantiate the quantum of monthly purchases made by the respective buyers. 11.0 Learned Authorized Representative supported the order and stated that during the course of search substantial evidence in form of the note book containing the details of purchase of raw material and sale of finished goods have been recovered from the factory and office premises of the Appellant. He further submitted Appellant have himself admitted the fact about clearing the goods on Kuccha Parchi/ Slips which were subsequently destroyed. He also pointed to recovery of certain parallel invoices from the octroi department. He also referred to the statement of various purchasers of the finished goods who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient confirm the demand. In the present case since the quantification of entire demand against the appellant is based on the quantum of purchases made as stated by the purchaser of the finished goods in their statements, there can be no justification for denial of cross examination as requested by the appellant. In similar situation this tribunal has been remanding the matter to the adjudicating authority for allowing the cross examination of the witnesses. [Alliance Alloys Pvt Ltd Vs Commissioner Of Central Excise Delhi 2016 (338) ELT 749 (T-CHD), Slotco Steel Products (P) Ltd vs Commissioner of Central Excise Delhi-I 2015 (327) ELT 596 (T-Del)]. 14.0 In respect of the admissibility of statement recorded as evidence Hon ble Apex Court has in case of K I Pavunny vs Assistant Collector made observations as following: It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base conviction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution. In Naresh J. Sukhawani V/s. Union of India [(1995) Supp. 4 SCC 663] a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence which is already given by a witness. In civil cases there is not much scope for cross-examination as judgment is mostly based on records, however the right to cross-examine is part of the fundamental due process to which all parties are entitled. However, this does not mean that cross-examination is completely unbridled in scope and duration. All cross-examination is subject to two provisions in the Rules of Evidence. First permits the court to exclude evidence of slight probative value if there is a substantial risk of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. and second permits the court to curtail cross-examination to protect witnesses from harassment or undue embarrassment. All the concerns as above have been expressed by the Hon ble Supreme Court in case of Thana Singh [(2013) 2 S.C.R. 899]has observed 10. Between harmonizing the rights and duties of the accused and the victim, the witness is often forgotten. No legal system c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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