9911796707
TMI Blog2015 (11) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... ge iron sold by the appellant through M/s Gopal Steels to various customers. The statements of Sh. Gopal Krishan Agarwal was recorded wherein he explained the entries in the documents recovered from him and according to Sh. Gopal Krishan Agarwal, these entries pertained to the sale of various consignments of sponge iron by the appellant through him. It is on this basis that SCNs were issued to both the appellants M/s Scania Steel and Power Ltd and M/s MSP Steel and Power Ltd. for recovery of duty from them, as in respect of the certain entries regarding sales transactions found in the record of M/s Gopal Steels, no central excise invoices appeared to have been issued by the appellants and besides this, in certain other cases where the invoices had been issued, the amount mentioned in the invoices was less than the amount mentioned in the documents recovered from M/s Gopal Steels. Accordingly, the SCN was issued to M/s Scania Steel and Power Ltd for demand of duty of Rs. 92,28,282/- from them along with interest and imposition of penalty on them under section 11AC and a SCN was issued to M/s MSP Steel and Power Ltd. for demand of duty amounting to Rs. 38,78,739/- from them along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f orders passed by the Tribunal dismissing the substantive appeal itself for non-compliance with the directions to make pre-deposit. 2. Learned Counsel for the parties are agreed that the present appeals arise from a common order of the Tribunal against which Tax Case No. 48 of 2014 and analogous appeals were filed which have been disposed by this Court on 01.12.2014. The parties are further agreed that these two appeals may also be disposed in similar terms as Tax Case No. 48 of 2014, disposed on 01.12.2014. 3. It is ordered accordingly." 1.5 The High Court's order videdated 01.12.2014 in the Tax Case no. 48 of 2014 of M/s B S Sponge Pvt. Ltd and others had granted leave to the petitioners to withdraw the appeals filed before the High Court and approach the Tribunal itself by way of appropriate application for restoration of the appeals on the ground that there have been certain amendments in the law with regard to waiver of pre-deposit, along with certain judicial orders and order of the Tribunal in similar matters. In this regard para 3, 4, 5 and 6 of the order dated 01.12.2014 in the Tax Case No. 48-52 of 2014 is reproduced below: "3. After some arguments, Ld. Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of Honble High Court, the appellants request for restoration of the appeal is considered and appeals are restored, the stay order would also have to be necessarily modified. 3. Sh. Kartik Kurmi and Sh. SB Sharma, Advocate the Ld. Counsel for the appellants pleaded that in both the cases the duty demands have been confirmed against the appellants on the basis of the entries in certain documents recovered from Sh. Gopal Krishan Agarwal a Commission Agent and also the statement of Sh. Gopal Krishan Agarwal implicating the appellants, that no inquiry have been conducted with the consignees whose names were also mentioned in the documents recovered from the Commission agent and similar no inquiry has been conducted with the transporters as the entries also mentioned the registration no. of the transport vehicles, that the premises of the appellant factory was not searched and only the statement of certain staff of the appellant company was recorded wherein they have not given any inculpatory statement, that in the circumstances of the case, the cross examination of Sh. Gopal Krishan Agarwal, who is the writer of the documents recovered from him and on the basis of which the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire case against the appellant companies is based on (a) the documents recovered from Sh. Gopal Krishan Agarwal, a Commission Agent, who is a proprietor of M/s Gopal Steels and (b) the statement of Sh. Gopal Krishan Agarwal, stating that the entries in the documents, relating to the appellant companies are the entries relating to the sale through him or the goods manufactured by the appellant companies. It is not in disputed that entries in the documents recovered from Sh. Gopal Krishan Agarwal also mentioned the vehicle number in which the goods had been transported and also the names of the customers but admittedly neither any inquiry had been conducted with the transporters nor any inquiry had been conducted with the consignees/customers. In follow up action, the factories of the appellant company had also not been searched and except for calling for the certain documents and recording of statements of their employees no other inquiries have been conducted. Statements of the Directors of the appellant companies have also not been recorded. 6. Thus, the case against the appellant companies is based only on the third party documents i.e. documents recovered from the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or whose presence cannot be obtained without an amount of delay or expense, which under the circumstances of the case, the Court considers unreasonable and even in such a situation, in terms of the judgment of Hon'ble Delhi High Court in case of J&K Ciggarates vs. CCE a hearing has to be given to the affected party before taking a decision for acting on the statement of a person without his cross examination and a specific finding is required to be given on the point as to whether the person who made this statement is dead or cannot be found, or is incapable of giving evidence, or is being kept out of the way by the adverse party or whose presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable. The most important part of section 9D which is relevant for the adjudication proceedings is sub section 2 according to which the provisions of sub section 1 shall, so far as may be, apply in relation to any proceedings under this act, other than proceedings before a court, as they apply in relation to a proceedings before a court. Thus the provisions of sub section (1) of section 9D which are applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
