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2016 (8) TMI 435 - CESTAT NEW DELHI

2016 (8) TMI 435 - CESTAT NEW DELHI - TMI - Clandestine removal of sponge iron - Demand of duty alongwith interest and penalty - period involved is 2005-2006 to 2006-2007 - no statement of appellant admitting clandestine removal - Held that:- the appellant never confessed having removed any goods clandestinely. As the cross examination of transporters and the commission agent was denied and having regard to the fact that such denial certainly caused prejudice to the appellant as their statements .....

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52683/2014 - Final Order No.50951/2016 - Dated:- 15-2-2016 - Mr. R.K. Singh, Member (Technical) Shri Vaibhav Bhatnagar, D.R. for the appellant Shri Manish Saharan, Advocate for the respondent ORDER Per R.K. Singh: Revenue is in appeal against order-in-appeal dated 12.11.2013 only to the extent it pertains to M/s Uday Sponge and Power P. Ltd. (the respondent) against which the primary adjudicating authority confirmed demand of ₹ 34,67,766/- along with interest and equal mandatory penalty on .....

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tement of the appellant admitting the clandestine removal. 3. ld. Advocate for the respondent, on the other hand, stated that it had sought cross examination of co-noticees whose statements were relied upon which was denied on the ground that the reason for seeking cross examination was not spelt out. He stated that there was no clandestine clearance and the transporters have not stated that they removed any goods from the appellant s factory without payment of duty. He added that third party ev .....

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ral stated that they are loading and transporting the excisable goods namely Sponge Iron, from the factory premises of various manufacturers situated in Bhanpuri, Urla and Sitara. I found that none of transporters mentioned supra has admitted in their statements recorded by the department specifically that they have loaded and transported the said alleged goods without the cover of invoices from the factory premises of the appellant No. 1. Further, no Loading advices were found with the said tra .....

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oving the charge of clandestine removal. Thus, the demand of duty amounting to ₹ 34,67,766/- (including cess) from Appellant No. 1 without substantiating concrete and affirmative evidences such as, Transport of the impugned goods, flow back of money from entities to which impugned goods were allegedly sold, confirmation regarding the actual buyer of the goods, physical verification of stock of raw materials and finished goods, use of more labour/manpower, excess electricity consumption and .....

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duct, extra working hours of factory, electricity consumption, payment of charges, transportation bills, etc. Thus, I do not find any substantial and corroborative evidences against Appellant No. 1 and accordingly find no merit in the impugned order confirming demand of duty from Appellant No. 1. Held accordingly. 5. I find that the appellant never confessed having removed any goods clandestinely. As the cross examination of transporters and the commission agent was denied and having regard to t .....

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where it is felt that fair hearing would make no difference-meaning that a hearing would not change the ultimate conclusion reached by the decision-maker in such situations, fair procedures appear to serve no purpose since the right result can be secured without according hearing/cross-examination. (ii) It may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-gra .....

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