TMI Blog2009 (11) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Ravindran, Member (J) and P. Karthikeyan, Member (T) S/Shri K.S. Ramesh, Jai kumar, B. Venugopal, B.V. Kumar, Advocates, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - After hearing both sides on the stay applications, we take up the appeals proper for disposal. Facts of the case are that adjudicating allegations of manufacture and clearance of resins by M/s. Harika Resins Pvt. Ltd. (HRPL) under the bills of three fictitious units and by undervaluing the goods to fraudulently avail SSI exemption during the period 10/2000 to 10/2003, the Commissioner confirmed demand of Rs. 67,47,513/- along with applicable interest against HRPL and imposed equal amount of penalty on it u/s 11AC of the Central Excise Act, 1944. A penalty of Rs. 15 lakhs was also imposed on HRPL u/r 25 of the Central Excise (No. 2) Rules, 2001/Central Excise Rules, 2002. Penalty of Rs. 5,00,000/- u/r 173Q of Central Excise Rules, 1944 and u/r 25 Central Excise Rules, 2002 was imposed on Shri Sama Rajasekhar, MD, HRPL. Penalty of Rs. 25,000/- each was imposed on S/ Shri M. Kalyana Chakravarty and Siva Durga Prasad, Accountant, HRPL u/r 209A of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained under coercion. The findings of clandestine removal were not sustainable in the absence of concrete evidence. The impugned order deserved to be vacated. It is submitted that the appellants may be allowed adequate opportunity to present their case after they had examined the several witnesses who had deposed against them. 3. Ld. SDR representing the Revenue defended the finding and order of the Commissioner. She submitted that adequate opportunity was provided to the appellants to present their case and witnesses were also produced for cross-examination on 11-12-2006. Documents relied on had been furnished to HRPL before adjudication. As the impugned order had been passed after offering six opportunities to the appellants to put forward their case and since documents sought had also been furnished to them, the plea of the appellants deserved to be rejected. 4. We have carefully studied the case records and the rival submissions by both sides. During investigation, statements were recorded from MD and employees of HRPL, buyers of resins and transporters. Relying on the evidence gathered, the Commissioner found after due process of law, that HRPL cleared excisable goods n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has not been substantiated how cross examination of the co-noticees, panchas and officers together were relevant to the facts of the case. Therefore, I hold that the cross examination already held would be sufficient. In fact, this was the opinion also of my predecessor recorded after a few bouts of cross examination. I also find from the case records that the investigating officers had been showing and taking the Statements of all the main persons in 3 or 4 spells and often showed the statements of others recorded by then and taking their response reaction to the things shown or put into discussions. Having given ample number of PHs and taken various versions of them during the hearings would meet the tenets of the principles of natural justice. The citations relied upon by the learned Advocate(s) were seen and understood in the background of the facts of the case. Therefore, I feel that their version of defence is fully presented and heard in more than half a dozen PH opportunities." 6. The Commissioner has not discussed the various statements recorded during investigation which led her to the findings arrived at in the impugned order. She has given the following as the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, the customers used to come and book the goods at their office. In respect of bigger consignments by regular customers, the customers inform over phone about the consignment and the Company's (SRMT) vehicle used to go to the premises of the Customer and the goods would be loaded at the factory premises. In respect of the bills under the name of Kalyan Chemicals (which show the address at Kabela Area, Vijayawada), they were actually given to them by HRPL, for covering the barrels which were loaded at HRPL factory in Kabela Area, Vijayawada. For preparing the LR, the staff of HRPL used to give the bill under the name of M/s. Kalyan Chemicals and the bills were written and signed by Sri. Kalyana Chakravarthy, who is clerk in HRPL. He also stated that the quantity mentioned in the Bill would be of some excess than the actuals. This was accepted to maintain business relation with them. These two Statements of the transporters (who were independent) depict as to what happened at the Consignor's end i.e., in Vijayawada. The narrations of the events in SCN get proved by these Statements beyond any doubt." We find that these statements, prima facie, do not constitute adequate evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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