9911796707
TMI Blog2015 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... 95, the Central Excise Officers during the preventive check to the Respondent's factory, prepared a Panchnama dt.13.11.1995, showing excess quantity of MMF (Processed) and shortage of the finished goods on the basis of diary. 3. A Show Cause Notice dt.06.05.1996 was issued by the Superintendent (Preventive) HPIU-V, Surat, proposing to confiscate the seized goods i.e. 261 pieces of Processed MMF and demanding the duty leviable on the seized goods and also proposed to impose penalty, which has been decided vide OIO No.29/ADJ/96/OA, dt.14.11.1996 by the Deputy Commissioner, Central Excise, Surat. 4. Another Show Cause Notice dt.28.01.2000 was issued by the Additional Commissioner of Cen.Excise & Customs, Surat-II, proposing demand of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. In de-novo proceedings, by the impugned adjudication order, the Joint Commissioner again confirmed the demand of duty along with interest and imposed penalty of equal amount on the Respondent and also imposed penalty in the Director and Supervisor-cum-Clerk of the Respondent Company. It has also confiscated the seized goods. By the impugned order, the Commissioner (Appeals) set aside the adjudication order. Hence, Revenue filed this appeal before the Tribunal. 6. After hearing both the sides and on perusal of the records, I find that the Commissioner (Appeals) observed that the Show Cause Notice dt.03.05.1993 in respect of seizure of the goods, has already been adjudicated by OIO No.29/Adj/96/OA, dt.14.11.1996, the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds and no duty had been paid on the same. It was also revealed that other copies of the said invoice were kept blank. The officers also recovered three private diaries from the bed room of Shri Sanjay Kothari situated at the first floor, two of them written in pencil, containing details of grey MMF and processed MMF such as Pcs, L.Mtrs, Name of the party, Date of receipt and dispatch etc. In this respect, Shri Sanjay Kothari stated that grey fabrics shown in the said diaries were received by the appellants on different dates and after processing it, the same were cleared to the respective parties as per the details shown in column No.8/9 of the said diaries without accounting for the same in statutory records like R.G. 1 register and witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed grey challans were processed and cleared by them to the parties as per the directions of the director of the appellants. 6.2 The appellants in their defence has stated that none of the persons of the company had made any admission of the offence during Panchnama, however they were compelled to sign the panchnama containing their confession of the offence; that they do not agree with the same and therefore they have retracted the same immediately on 14.11.1995 by way of a telegram and affidavit dt.14.11.95; Shri Rajendraprasad D. Tiwari, one of the panchas has also filed affidavit dt.14.11.95 that he was not present during the recording of the panchnama and that he was called at night at about 9.30 hrs and instructed to sign the panchnam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nama where he is shown to have arrived after the completion of stock taking and recovery of incriminating documents. Likewise, Shri Mahendra D. Desai has also retracted his version of the panchnama and has affirmed that his signatures were obtained under threat and duress. Reliance has also been placed by the Adjudicating authority on the statement dt.17.11.95 of Shri Mahendra D. Desai where he is purported to have accepted the illicit clearance of the goods of details mentioned in the diaries. I find that even this statement has been retracted by Shri Mahendra D. Desai vide his letter dt.03.09.1998 written in Gujarati wherein he has stated that his statement was recorded in English and he did not know English and therefore he was not aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... address, for cross-examination. Letters written to him were being returned with the remarks "refused to take delivery". He was deparment's witness and as such should have been produced for cross-examination by any legal means. If required, recourse of sending summons through court could have been used by the Adjudicating authority. In nutshell, no attempt has been made by the Adjudicating authority to present the panchas for cross-examination inspite of the direction of Commissioner (Appeals) given by him while remanding the case for de-novo adjudication and as such I hold that principles of natural justice have been gravely violated in this case and the impugned diaries, Panchnama and the statement of Shri Mahendra D. Desai cannot be sole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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