TMI Blog2014 (7) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- appellants have cleared the goods without payment of duty and without the cover of any Central Excise invoices and the transactions were made in cash. Thus, there is no documentary evidence indicating that the price of the goods included the excise duty payable. Therefore, as per the decision of the Hon’ble Apex Court in the case of Amrit Agro Industries Ltd. (cited supra), the question of exclusion of duty element will not arise for determination of value under Section 4(4)(d)(ii) of the Central Excise Act, 1944 - Decided against assessee. - E/1173-1176/2010 - Final Order Nos. A/966-969/2013-WZB/C-II(EB) - Dated:- 13-11-2013 - Shri P.R. Chandrasekharan, Member (T) and Anil Choudhary, Member (J) Shri A.K. Prabhakar, Advocate, for the Appellant. Dr. B.S. Meena, Addl. Comm. (AR), for the Respondent. ORDER The appeals are directed against Order-in-Original No. 102/CEX/Commr./2009, dated 31-12-2009 passed by Commissioner of Central Excise Customs, Aurangabad. 2. A case of clandestine manufacture and removal of MS Ingots and MS re-rolled products by M/s. Ahmednagar Rolling Mills Pvt. Ltd., (ARMPL in short) and M/s. Ramdas Ispat Metal Pvt. Ltd. (RIMPL i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . counsel relies on the decision of the Hon ble High Court of Delhi in the case of Basudev Garg v. CC - 2013 (294) E.L.T. 353 (Del.) wherein it has been held that statement against the assessee cannot be used without giving them an opportunity of cross-examining the deponent. He also placed reliance on the decision of the Hon ble Allahabad High Court in the case of CCE, Allahabad v. Govind Mills Ltd. - 2013 (294) E.L.T. 361 (All) wherein it was held that the assessee was entitled to cross-examine the persons who had deposed against him and the excise officer and in the absence of such cross-examination, the alleged confessions cannot be relied upon. He also relies on the decision of the Tribunal in the case of R.K. Soap Oil Traders v. CC, New Delhi - 2013 (294) E.L.T. 463 (Tri.-Del.) wherein this Tribunal held that cross-examination of co-noticees cannot be refused. He further submits that in the present case the entire case is based on the entries made in the private register and there are no corroborative evidences by way of transportation of the goods clandestinely removed, consumption of electricity for the manufacture of goods, purchase of raw materials, etc. In the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Somani Iron Steels Ltd. v. CESTAT - 2011 (270) E.L.T. 189 (All) wherein it has been held that private records found in the factory of the assessee and recovered from the possession of their employees, showing suppression of production, the burden was upon the assessee to prove that documents were wrong and did not pertain to them. If the burden is not discharged, suppression of production and confirmation of demand of duty would be sustainable in law. The said decision of the Hon ble Allahabad High Court s decision was affirmed by the Hon ble Apex Court as reported in 2012 (277) E.L.T. A26 (S.C.). Similarly, the Hon ble High Court of Andhra Pradesh in the case of Shalini Steels Pvt. Ltd. v. CCE, Hyderabad - 2011 (269) E.L.T. 485 (A.P.) has held that when the documents recovered from the employees of the assessee showing clearances of the goods and contents were accepted to be true and correct by the Managing Director of the assessee, the evidentiary value of documents would not be lost for non-production of the employee for cross-examination and no prejudice was caused to the assessee. 4.1 The ld. AR also relies on the decision of the Hon ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true and correct and pertain to the unaccounted production, purchase of raw materials without accounting and sale of the finished goods in cash without payment of duty. Further from the records it is seen that about sixteen buyers (referred to in para 11.13 of the impugned order), who purchased the finished goods from the appellants without payment of duty have also confirmed that they had received these goods without the cover of proper excise documentation and without payment of duty. Similarly, two scraps suppliers, Mr. Yunus Ahmed Shaikh and Mr. Shaikh Mushtaq Gulab have also admitted that they have supplied the MS scrap which is the raw materials for the manufacture of these goods without the cover of documents and they have received consideration for sale of such scrap in cash. Considering these evidences available in record, we hold that the denial of cross-examination of the authors of the private records has not caused any prejudice to the appellants. In fact none of the statements recorded have been retracted or disputed. In such a scenario, when the fact is not disputed, cross-examination of the party is not necessary. The Hon ble Apex Court in the case of Kanungo Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Hon ble Allahabad High Court in the case of Somani Iron Steels Ltd., (cited supra) and affirmed by the Hon ble Apex Court in the said case would squarely apply to the facts of the present case. Therefore, in the absence of any evidence to prove that private records are wrong and did not belong to the appellants, the charge of suppression of production and clandestine removal stands clearly established. It is an accepted position in law that confessional statements recorded before Central Excise officers are acceptable evidences as held by the Hon ble Apex Court in Surjeet Singh Chhabra (cited supra) and several other decisions. In the present case none of the statements has been retracted. Therefore, the charge of suppression of production and clandestine removal without payment of duty stands clearly established. 5.3 The various entries made in the private records seized from the appellants have been examined in detail in paragraphs 2.1 and 3.5.2 of the impugned order. From the analysis made therein, it is clear that the entries made in the said record relates to the clandestine manufacture and supply of finished goods without payment of duty. These entries have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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