TMI Blog2015 (5) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the point as to whether the two witnesses, who did not turn up for cross examination are dead or cannot be found or are incapable of giving evidence or are being kept out of the way by the appellant or their presence cannot be obtained without an amount of delay or expense , which is unreasonable. Just because the witnesses did not appear for cross examination, their statements cannot be used against the appellant by invoking section 9D(2) read with section 9D(1) (a). For invoking these provisions, a finding by the adjudicating authority after hearing affected party that the circumstances enumerated in clause (a) of section 9D(1) exist, has to be given, while this has not been done in this case. - impugned order is set aside and the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods has been inflated to claim higher DEPB benefit, as in the case of some suppliers, statements of suppliers indicated in the invoices issued by them to the appellants regarding supplies of hand tools mentioned inflated price much higher than the price actually paid and the balance amount mentioned in the invoices, had been returned back by the appellant to them in cash. Overseas enquiries through Indian Embassy in Dubai were also made to ascertain as to what the value had declared by the importers in Dubai in respect of goods exported by the appellant and the enquiry report received indicated that the prices of the goods declared in the Bills of entry filed by the importers in Dubai were also very small fraction of the FOB value of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Tools, Jalandhar and Shri Abdul Gaffar, Proprietor of M/s. Rajasthan Tools. The Tribunal observed that since the allegation of mis-declaration of FOB value of the export consignments is based on the statements of above persons and since their cross examination had been requested, the denial of cross examination would amount to violation of principles of natural justice. Accordingly, the Tribunal remanded the matter to the Commissioner for de novo adjudication after allowing the cross examination of the above mentioned suppliers and affording the opportunity of hearing to the appellants and during de novo proceedings both the sides would be at liberty to produce evidence in support of their claim. 3. In de novo proceedings, though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alongwith stay applications. 5. Heard both sides. Though the matter was listed for hearing the stay applications only, after hearing the matter for some time, the bench of the view that the same can be taken up for final disposal. Accordingly the requirement of pre-deposit is waived and with the consent of both sides, the matter was heard for final disposal. 6. Shri Tarun Gulati, Shri Kishore Kunal and Ms.Arpita Chatterjee, ld. Counsels for the appellants, pleaded that while in de novo adjudication, cross examination of five suppliers out of seven suppliers had been conducted and after their cross examination, the appellants had submitted the detailed reply dated 14.2.12., the points raised in the written submission have not been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t correct. 7 Shri Gobind Dixit, ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner and pleaded that in terms of the Tribunal's earlier order, cross examination of seven suppliers have been allowed, out of which five suppliers appeared for cross examination and their cross examination had been conducted and remaining two suppliers did not appear for cross examination inspite of several summons have been issued to them. He pleaded that the plea made in the written submissions, dated 14.2.2012 have been dealt with in the impugned order and therefore, there is no infirmity in the impugned order. 7.1 We have considered the submissions made from both the sides and perused the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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