TMI Blog2015 (11) TMI 214X X X X Extracts X X X X X X X X Extracts 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 can claim right against testimonial compulsion under Article 20 (3) of Constitution of India and thereby by their joint effort bring about failure of natural justice. - However, imposed penalty is reduced - Decided partly in favour of assessee. - APPEAL No.E/1126 to 1130/10 - FO no. A/2019-2023/15/EB - Dated:- 8-7-2015 - Mr. P.K. Jain, Member (Technical) And Mr. S.S. Garg, Member (Judicial) For the Petitioner : Shri.A.K. Singh, Advocate For the Respondent : Shri.V.K.Agarwal, Addl. Comm. (AR) ORDER 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als), who has upheld the order and aggrieved by the said order, the appellants are before us. 2. The learned Counsel for the appellants main submission was that no investigation has been carried out at the appellants No.1 and the entire demand is based upon the documents recovered from the office of the appellant No.3. The department did not even visit or check up the records of the appellant No.1 and in the absence of any 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 The learned Counsels other submission was that the statement of appellant No.2 recorded on 23/01/2007 was retracted on the first available opportunity, i.e. on 24/01/2007 and the second statement recorded on 31/05/2007 was also retracted on 01/06/2007 and under the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 authority and in the absence of cross examination, the statements of other person cannot be relied upon and on this ground itself the matter needs to be remanded back to the original authority to permit the cross examination of the witnesses. 3. Ld. Counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 anything about the retraction. On the contrary, confirmed the contents of the statement made on 23/01/2007. Even the retraction on 01/02/2007 is a general statement without giving any details and again addressed to DGCEI, Delhi under Certificate of posting. Under these circumstances, the retractions are of no consequences and the fact remains that the appellant No.2, who was the Director of the appellant No.1 has admitted the clandestinely cleared the goods without payment of duty. Since the appellant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant has submitted that no statement of Shri RL Gautam, who was the proprietor of M/s.Gautam Enterprises was recorded. Contents of each diary (viz., 23, 24 26) have been explained by Shri Pravesh Gautam, Director in the appellants firm. 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 pertains to M/s.Gautam Enterprises or any other firm. Under the circumstances, we are of the considered view that the plea of the learned Counsel requires outright rejection and we accordingly do so. 5.3 The other plea of the learned Counsel is relating to retraction of the statement. We have gone through the statement as also the retraction letters of Appellant No.2 3. 5.4 We have gone through the retraction letters. We note that the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the four persons whose statements are recorded and relied upon, are the noticees in this case. Thus what is being sought is to cross examine the co-noticees. We also note that even if relied upon the statements of the appellant No.3, 4 5 are ignored, case against appellant No.1 2 will stand based upon documents and statement of appellant No.2. Similarly, documents recovered from appellant No.3s 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. 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-noticees/accused does not result in violation of na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout a situation of failure of natural justice by a joint 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 further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up . It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justice. 8. In view of the above position, in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
