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2015 (11) TMI 1468 - CESTAT NEW DELHI

2015 (11) TMI 1468 - CESTAT NEW DELHI - 2015 (328) E.L.T. 379 (Tri. - Del.) - Restoration of appeal - Waiver of pre deposit - Appeal dismissed for non compliance with pre deposit order - Section 35F - Held 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 .....

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ll, 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 for prosecution proceedings before a court, by virtue of sub section 2 of section 9D, have to be applied as far as possible in respect of adjudication proceedings also. The word ‘so far as may be’ used in sub section 2 indicate that while the provisions .....

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uty demand, interest and penalty by the appellant company is waived for hearing of their appeals and recovery thereof is stayed - Stay granted. - Excise Misc Application E/Misc/50497, 50420/2015, Excise ROA Application E/ROA/50581, 50421/2015 & Excise Appeal No. E/58717,58797/2015-Ex[DB] - Misc Order No. 51605-51608 /2015 - Dated:- 21-4-2015 - Mr. Rakesh Kumar, Member (Technical) And Mr. S. K. Mohanty, Member (Judicial) For the Petitioner : Mr. Kartik Kurmi & SB Sharma (Advocates) For the Re .....

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certain documents were recovered which appeared to contain the details of the consignments of sponge 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 .....

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ly, the SCN was issued to M/s Scania Steel and Power Ltd for demand of duty of ₹ 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 ₹ 38,78,739/- from them along with interest and also for imposition of penalty on them under section 11AC. Both the SCNs, along with the SCNs issued to other manufacturers, whose transactions were also figuring in the records r .....

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mission agent Sh. Gopal Krishan Agarwal and his statement and no inquiry has been conducted with the transporters or with the consignees and hence, cross examination of Sh. Gopal Krishan Agarwal is necessary and request for the same was made but this plea was not accepted by the Commissioner. Against the above order of the Commissioner, the appellants filed appeals before the Tribunal along with stay applications. The Stay applications were disposed of by the Tribunal along with stay application .....

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3698/2014 dated 15/09/2014. 1.3 Against the Tribunal s pre-deposit order dated 11.07.2014 both the appellants had filed appeals no. 38/2014 and 44/2014 before Hon ble Chhattisgarh High Court. Both the appeals were heard on 04.02.2015. However, since by that time the Tribunal had already dismissed the appeals, the High Court dismissed both the appeals as withdrawn; as the same had become infructuous. 1.4 Against the Tribunal s final order dated 15.09.214 dismissing the appeals for non-compliance .....

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ogous 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 o .....

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appropriate application for restoration of the appeals on the ground that theer 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. 4. Ld. Counsel for the Respondents submits that without prejudice to the rights and contentions of the Respondents in any proposed application that may be filed by the Petitioners, it may not be construed as liberty to file without pre-deposit. 5. As the prese .....

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6. The applications are dismissed as withdrawn with liberty. 1.6 Accordingly, in pursuance of the order dated 04.02.2015 of Honble Chhattisgarh High Court read with its earlier order dated 01.12.2014 of the High Court in a Tax Case No. 48 52 of 2014, the appellants have filed two miscellaneous applications one application is for restoration of appeal which had been dismissed by the Tribunal vide final order dated 15.09.2014. 1.7 The prayer in these applications is for restoration of their appe .....

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in both the cases the Tribunal earlier vide its order dated 11.07.2014 had ordered some pre-deposit and on the appellants failure to deposit the directed amount, the appeals have been dismissed for non-compliance with the provisions of section 35F, if in accordance with the directions 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 Sharm .....

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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 entire case against th .....

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r permitting the cross examination of Sh. Gopal Krishan Agarwal, that it is well settled law that duty demand against an assessee cannot be confirmed only on the basis of third party documents without permitting the cross examination of the persons from whom those documents had been recovered. It was, therefore, pleaded on behalf of the appellants that the stay order dated 11.07.2014 suffers from a serious mistake, and that, therefore, both the miscellaneous applications may be allowed. 4. Sh. R .....

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said order dated 11.07.2014, that High Court has remanded the matter for considering the restoration of appeals and if the appeals are to be restored, some pre-deposit has to be ordered as the Tribunals stay order dated 11.07.2014 cannot be modified for which there is no direction. He also pleaded that there is no apparent error in the stay order dated 11.07.2014 and as such it does not suffer from any mistake apparent from record. He also pleaded that the Tribunals stay order dated 11.07.2014 .....

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ission 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 admit .....

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nly on the third party documents i.e. documents recovered from the persons other than the assessee and their statements. It is also not in dispute that both the appellant companies had sought cross examination of Sh. Gopal Krishan Agarwal but the same has not been allowed by the Commissioner. Supreme Court in the case of Kishinchand Chellaram vs Comm. of Income Tax, Bombay reported in 1980 (supp) Supreme Court Cases 660 where the case of tax evasion had been made against the assesee on the basis .....

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s based on the opinion given by an expert and his cross examination is requested that has to be allowed. Hon ble Allahabad High Court in case of Kurele Pan Products (P) Ltd. reported in 2014 (307) ELT 42(ALL.) has held that cross examination is a valuable right of the noticee in quasi-judicial proceedings and if the same is not provided it would amount to violation of principles of natural justice. In the stay order dated 11.07.2014 of the Apex Court judgment in case of Kishinchand Chellaram vs .....

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e court and court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. In terms of clause (A) of section 9D(1), the only situation where statement of a person can be admitted as evidence without his cross examination is when the person who made this statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or whose presence cannot be obtained w .....

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nnot 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 th .....

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