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2022 (3) TMI 1253 - AT - Central ExciseClandestine manufacture and removal - Goa-1000 Gutkha - demand mainly based on statements of various persons - opportunity of cross-examination provided or not - invocation of Pan Masala Packing Machines (Capacity and Determination and Collection of Duty) Rules, 2008 - period 01st July, 2008 to 08th February, 2009 - HELD THAT:- It is apparent that a statement can be relevant without cross examination only if the person who has given evidence is dead or who cannot be found, or who is incapable of giving evidence, or who is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense. If the above circumstances do not exist then if a statement is to be relied, cross examination of witnesses is a must. The exact nature of effort made to cross-examine and how the statements become relevant under section 9D of Central Excise Act has not been stated. The appellant Shri Dipak Bhogilal Kothari has in his appeal specifically raised a plea of failure of Adjudicating Authority to grant cross examination. It is seen that the relief granted by the Commissioner is solely based on the statement of persons recorded during investigation. It is a fact that the machines were found present in the premises and as per Rule 6 read with sub rule 2 of Rule 17 of Pan Masala Packing Machines (Capacity and Determination and Collection of Duty) Rules, 2008, in such case involving clandestine manufacture the duty needs to be demanded from 1st July, 2008 to the date of which the factory was sealed by the Central Excise officers - In the instant case, the relief has been granted by the Commissioner relying on the statements which are not proven relevant evidence in the current circumstances. For statement to be relevant the conditions prescribed in rule 9 D of Central Excise Act need to be followed. The Revenue too in its appeal has argued that Commissioner had not examined the evidence in the proper perspective and should have confirmed duty for the entire period in terms of sub rule 2 of Rule 17 of Pan Masala Packing Machines (Capacity and Determination and Collection of Duty) Rules, 2008. It is seen that there are many more inconsistencies as the timeline given by each person gives different outcomes. Shri Himanshu Jasubhai Shukla in his statement states that construction of factory lasted for one and half month but it is not consistent with the date when Shri Kantibhai Patel met Shri Kiransingh for the first time. The generator was delivered on document dated 16.01.2009 by Eicher Truck (As per Shri Parekh’s statement) but the same was received in the end of the month. The matter remitted back to the Commissioner for fresh adjudication keeping all the issues open - appeal allowed by way of remand.
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