Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (11) TMI 214 - CESTAT MUMBAI

2015 (11) TMI 214 - CESTAT MUMBAI - TMI - Clandestine manufacture and removal of goods - Retraction of confession statements - Violation of principle of natural justice - Denial of cross examination - Held that:- contents of the statements provides lot of details and such details can be known only to the person who is involved in day to day activities of organisation and not to officers. Further in the retraction letter it is not specified what portion of a statement was incorrect. We also note .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

against appellant No.1 & 2 will stand based upon documents and statement of appellant No.2. Similarly, documents recovered from appellant No.3 s office is sufficient to impose penalty on appellant No.3. Statements of appellant No.4 & 5 along with documents recovered are sufficient for imposition of penalty on them. - denial of cross examination of co-noticees/accused does not result in violation of natural justice and cannot be insisted on as a matter of right by them. Otherwise each of accused .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ER Per: P. K. Jain 1. Brief facts of the case are that based upon an intelligence that the appellant No.3 and another manufacturer were manufacturing and clandestinely clearing the goods, namely, TMT Bars without payment of duty through a broker, simultaneous searches were conducted at number of places which included the appellant No.3 s factory at Nashik and their office in Mumbai. In the appellant No.3 s office in Mumbai, certain incriminating documents were recovered (in addition, incriminati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es. The appellant explained the contents of these diaries. The diaries contain the details of MS ingots purchased by them from various manufacturers of MS ingots. The details included consignment-wise, date, rate, supplier s name, broker s name, etc. Another diary (No.26) contains the details of the payments made. All the three diaries were explained by Shri Gautam in his statement. Based upon the details available in these diaries it was found that the appellant No.3 have received MS ingots fro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he appellant No.3without payment of duty. Appellant No.3 has also admitted of having purchased the MS ingots. After the investigation, show-cause notice was issued to the manufacturer of MS ingots i.e. appellant No.1 for recovery of duty and penalty and to appellant No.2 to 5 for penalty. The case was adjudicated wherein the duty, interest and penalties were confirmed against the appellant No.1, i.e. manufacturer of MS ingots and penalties were also imposed on the appellant No.2 to 5. Aggrieved .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y investigation at the end of the appellant No.1 demand cannot be sustained. The learned Counsels other submission was that the statement of appellant No.2 recorded on 23/01/2007 was retracted on the first available opportunity, i.e. on 24/01/2007 and the second statement recorded on 31/05/2007 was also retracted on 01/06/2007 and under the circumstances these statements cannot be relied upon. It was also submitted that cross examination requested by them was not allowed by the original authori .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t was his submission that the diaries which were recovered were common for all the three firms and many entries were made in the hand writing of Shri R.L Gautam and the Revenue has not bothered to record the statement of Shri RL Gautam and in the absence of his statement, it cannot be said that all the entries are relating to the present appellant. Keeping in view this factual mistake committed by investigators , penalty cannot be imposed on the appellant. 3.1 Second submission of the learned Co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rance of the goods without payment of duty. Such cross-examination was not allowed by the original authority and since the cross-examination has not been allowed, their statements cannot be relied upon by the Revenue; hence, the whole case of the Revenue has no merit. a) Slotco Steel Products Pvt. Ltd. Vs. CCE 2012 (281) ELT 193 (Del) b) Basudev Garg Vs. CC 2013 (294) ELT 353 (Del) c) CCE Vs. Parmarth Iron Pvt. Ltd., - 2010 (260) ELT 514 (All.) d) Vinod Solanki Vs. UOI 2009 (233) ELT 157 (SC) 3. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

senior or any other higher officer in Mumbai but was sent under the certificate of posting to DGCEI, Delhi. This is as per their claim. There is no evidence that the said letter has been received by the said office. Further, in the so called retraction there is no details indicating what was recorded under duress and what is wrong in the statement or what is the correct position. It was further submitted that on 30/01/2007 when the second statement was recorded, the appellant did not speak anyt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt has admitted the evasion of duty, no further proof or visit to his unit was required and that is what was done in the investigation and it is a settled position of law that what is admitted need not be proved. It was further submitted that the appellant No.3 has purchased the goods with bill and without bill and the incriminating documents were recovered from his premises. It is appellant No.3 who has explained the contents of the diaries. These diaries indicate precise details of the quantit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the statement and also clarified which are the entries relating to M/s.Gautam Enterprises. Even today, the Appellant No.3 not clarified which are the entries relating to Sarlia Steel, which are pertains to M/s.Gautam Enterprises. Under the circumstances, the issue raised is for the sake of raising the issue and is required to be out-rightly rejected. As far as the question of cross-examination is concerned, the learned AR submitted that the people to be cross-examined are co-noticees and callin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

5 are concerned they have admitted their role. 5. We have considered the rival submissions. 5.1 We note that whole case of the department is based upon the documents recovered from the appellant No.3s office in Mumbai. The documents are diary No.23, 24 & 26. It is not disputed that these diaries were recovered in Mumbai from a place where the appellants No.3 office exists. 5.2 A plea is being made that the office is a common office for three firms. Out of other two firms, one is owned by t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

m. We also note that based upon these diaries detailed tabulations were prepared by Revenue indicating various suppliers from whom clandestinely cleared goods were purchased by the appellant No.3. These were again shown to Shri Pravesh Gautam who after going through the diary and the tabulation has confirmed the details in the statements prepared. Shri Pravesh Gautam has not stated in any of the statements about any particular entry that the said entry does not pertains to Appellant No.3 but per .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

h details can be known only to the person who is involved in day to day activities of organisation and not to officers. Further in the retraction letter it is not specified what portion of a statement was incorrect. We also note that the so called retraction letter were posted to DGCEI Delhi and not to any officer in Mumbai. This itself shows that appellant No.2 did not want any enquiry on the duress, etc. Further during second statement, the appellant No.2 did not speak of any retraction and al .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the details given in the initial statements. We have also gone through the retraction letters which do not indicate which portion of the statement is incorrect or recorded under duress. 5.6 Keeping in view the overall circumstances of the case and the contents of the statements as also the so called as retraction letter, we hold that the statements of both appellant No.2 as also Shri Pravesh Gautam as far as the contents relating to this case are true and correct and can be used as an evidence .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. System & Components Pvt. Ltd., reported in 2004 (165) ELT 136 (SC). Moreover the Appellant No.2 has stated in his statement that such details are neither recorded or destroyed. No purpose would have therefore served. We therefore, do not find any merit in the said contention. 7. As far as the learned Counsels contention about the cross examination is concerned, it is seen that in the present case, statement of only four persons were recorded and are relevant. It is to be noted that all th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

; 5 along with documents recovered are sufficient for imposition of penalty on them. Further, we note that this Tribunal in the case of Maya Mahal Industries Vs. CCE reported in 1995 (80) ELT 118 (Tribunal) as also in the case of Jagdish Shanker Trivedi Vs. CCE reported in 2006 (194) ELT 290 (Tri-Del) has observed that the cross examination of witnesses cannot be claimed as a matter of right under Section 124 of the Customs Act, 1962. It was also observed that denial of cross examination of co-n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to be relied on against them along with the relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employee of the appellant Ashish Kumar Chaurasia and the statements of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lation of principles of natural justice. In almost all the cases such persons dealing in contraband would refuse to be cross-examined on the ground that they are accused of an offence and, had a fundamental right against testimonial compulsion under Article 20(3), and thereby create a situation where each one of them, in the same breath, would ask for cross-examination of the other and refuse to be cross-examined, and then contend that refusal has resulted in failure of proper hearing. Therefore .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

int strategic effort such co-noticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees. We, therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, cross-examined two official witnesses and at the end, he had only sought for time for furthe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version