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M/s OTR Papers Pvt Ltd, Shri Neeraj Jindal, Director, Shri Sameer Garg, Director, Shri Yogesh, Supervisor Versus Commissioner of Central Excise, Customs And Service Tax, Noida

2016 (6) TMI 465 - CESTAT ALLAHABAD

Clandestine removal of goods - shortages in the finished goods - Seeking cross-examination of witnesses who allegedly maintained the log books Held that:- non-examination of the concerned person, whose statements have been relied upon is in violation of Section 9D of the Act, which provides that where any statements are to be relied upon of any person, in any proceedings under the Act, then such person must be examined in the proceedings under the Act, which includes adjudication proceedings. .....

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e provided inspection of documents either relied upon and/or not relied upon, a copy of which, if they have not been given earlier shall be provided. Thereafter, the appellants, if they so desire, can file supplementary reply to the show-cause notice and after hearing the parties, the adjudication order shall be recorded by the authority. Appeal allowed by way of remand - MAs-70041-70044/15, Ex. Appeal Nos.3325-3328/2012 - Final Order Nos. A/70089-70092/2016-DB and Misc. Order Nos. 70098-70101 .....

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s to be given adequate opportunity of hearing and accordingly, remanded the matter with a direction to the Appellant Company to make further deposit of ₹ 20.00 lakhs within four weeks and produce challan before the adjudicating authority and seek opportunity of hearing. It was also observed that the appellants will be entitled to inspect the copy of documents and the relied upon documents and also take the copies and extract thereof, all issues are kept open. 3. In compliance, the Appellan .....

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tock of 17.13 MT of un-coated kraft paper standard, was found and the shortages of 12.98 MT of un-coated kraft paper grade II was found. It was further found that the assessee Company was not maintaining any stock register of raw materials/cenvatable inputs regarding purchase, consumption or any balances. Physical stock of cenvatable inputs could not be co-related with any book balance, hence, the entire stock of cenvatable inputs and the excess stock of un-coated kraft paper standard was seized .....

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rial account, after making deductions for items, like, Kachra, mud and other unusable material present in the lot. The appellant stated that the heads of deduction from waste paper received in the factory are as under: (i) Tarkol/Kachra (ii) Moisture (iii) Other deductions. But, the bills for inputs were raised by the supplier of the net quantity of waste paper accepted by the assessee, It appears to Revenue that the assessee Company was willfully reflecting higher quantity and value of other de .....

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entries in the log book, it appear to Revenue that only some clearances matched, in large number of instances, no corresponding invoices showing removal of goods was issued by the appellant company. Thus, it appeared that the appellants have clandestinely removed the finished goods, which were excisable without payment of duty. Search was also conducted at the premises of M/s Kalkaji Papers at Kalkaji, Delhi. During search, packing slips were recovered. On the said packing slips, the name of th .....

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emoval and payment have been made by the said Shri Paras Singhal in cash to the Director, Shri Sameer Garg, of the appellant Company. 5. SCN dated 31.03.2008 was issued proposing to levy duty of ₹ 65,27,331/- on goods removed without payment of duty and ₹ 2,52,924/- was supposed to be demanded on the goods removed to M/s Kalkaji Papers on the basis of packing slips recovered and further penalty was proposed on the Appellant Company as well as its two Directors, Shri Neeraj Jindal and .....

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tral Excise Rules, 2002 and penalty of ₹ 2.50 lakhs each was imposed on Shri Neeraj Jindal and Shri Sameer Garg, both Directors of the Appellant Company and further penalty of ₹ 75,000/- on Shri Yogesh, Supervisor of the appellant Company, all under Rule 26 of the Central Excise Rules, 2002. 7. The ld.Counsel for the appellants, states that the proper opportunity of hearing have not been granted , inasmuch as the cross examination of the person, the statement of which have been relie .....

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2010-11 as regards the computation of duty, culpability of the co-noticees, amount of Central Excise Duties confirmed and the penalties imposed." Accordingly, he prays for setting aside the impugned order with the direction to the ld.Commissioner to provide an adequate opportunity of hearing including cross-examination of the person, whose statements have been relied upon and also from whose premises, documents recovered, have been relied upon. He further states that the Miscellaneous Appli .....

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atement of son of the transporter, Shri Mukul Goel, son of Shri Mohan Lal. Shri Mukul Goel, in his statement, available at Exibit-C, has stated that he assisted his father, Shri Mohan Lal, who is proprietor of concern "Shri Mohan Lal Kalicharan", although the entries in the note book/log book are maintained by the driver of the vehicle, but at times, he also makes entries as per information given by the Driver. Further, in the statement, Shri Mukul Goel has stated that his father owns .....

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llant's application for cross examination was rejected by the ld.Commissioner vide communication dated 04.06.2012 stating that Shri Mukul Goel, son of Shri Mohan Lal was present at the time of search and he admitted transportation of the goods from the appellant Company and admitted to maintain the log book by the driver and himself. In view of the non-retraction of his statement till date, the statement holds good. Further, the Department has not recorded or relied upon the statement of Shr .....

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