TMI Blog2010 (4) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... ass, Moradabad (Importer) had imported zinc ingots and copper wire rods duty free under the DEEC scheme and diverted the same to the local market. That the employees of M/s. Ganpati Warehousing Ltd. (GWL), New Delhi are actively involved in clearance, transportation and diversion of said imported goods. Accordingly the premises of M/s. GWL were searched and no incriminating documents were recovered but statements of certain persons namely Shri Sanjay Mahendra Dave, Shri Subhash Sharma, Shri M.S. Khatri were recorded. On the basis of the statements a show cause notice was issued to M/s. Al Falah Brass, Moradabad and its proprietor Shri Mohd. Anis as to why imported goods i.e. 220.421 MT of zinc ingots and 190.346 MT of copper wire rods value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clearance charges, transportation of goods etc. (iv) Copper wire rods and zinc ingots were sold in open market by Shri Rudra Pratap Singh, Shri Maha Singh Khatri and Shri Subhash Sharma and profit out of the local sale of material was shared by these persons alongwith Shri Mohd. Anis, Shri Ravindra Rastogi and Shri Sanjay Dave. (v) Shri Sanjay Dave knew that the goods imported against the subject advance licence were being diverted to local market at Delhi instead of being taken to the importer at Moradabad. He had given delivery of goods imported vide Bills of Entry No. 2531 and 2532 both dated 29-5-2001 to the transporter even when he knew that DRI was investigating a case of diversion of goods imported vide other three Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nculpatory documents recovered from any of the persons alleged in the show cause notice. Moreover, the importer has admitted that the importer has made import and sold the impugned goods in the local market. Hence the impugned order is liable to be set aside. To support their contentions, the learned advocate relied upon G.T.C. Industries Ltd. v. Union of India reported in 1991 (56) E.L.T. 29 (Bom.) wherein it was held that denial of cross examination of witnesses and right to lead overall and documentary evidence in support of their contention amounts to breach of natural justice. He further relied upon Hindustan Polyster Lines reported in 2009 (236) E.L.T. 44 (P H) wherein the Hon ble High Court of P H held that denial of cross examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the importation of duty free material against the Advance licence and disposed of the same in the local market. The Commissioner has also found that the statements of Shri Ravindra Rastogi and co-noticee are contradictory to each other. He further denied the cross-examination of the witnesses due to the reason that Shri Ravindra Rastogi has not stated valid reason for cross-examination. Further, he observed that in this regard, I find that the statements recorded during the course of investigation though retracted within 6 days is an admission and binding because it is made before a customs officer. To arrive this finding, the Commissioner relied on the Hon ble Supreme Court s decision in the case of Surjit Singh Chhabra v. UOI reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examination of witnesses and right to lead overall and documentary evidence in support of their contention amounts to breach of natural justice. The decision in the case of Hindustan Polyester Lines (supra) is also relevant to this case. In that case the Hon ble High Court of P H upheld the decision of the Tribunal that denial of cross examination of witnesses whose statements were recorded at the back of the assessee amounts to violation of principles of natural justice. We find in this case no documents were recovered from any of the persons and the statements recorded are also retracted. No cross examination of the witness co-notices were allowed. Hence, we do not find any merit in the impugned order qua appellant namely Shri Ravindra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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