TMI Blog2017 (9) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 D of the Central Excise Act, 1944, which is mandatory in nature, in our considered view, reliance cannot be placed on the statements of various witnesses alone, to frame the charges against the appellant for confirmation of the adjudged demand. The evidences available in the present case are not sufficient enough to establish a case of clandestine manufacture and clearance on the part of the main appellant company - appeal allowed - decided in favor of appellant. - E/57309/2013-EX[DB] & E/57310/2013-EX[DB] - A/55628-55629/2017-EX[DB] - Dated:- 1-8-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Present for the Appellant: Mr. K.K. Anand, Advocate, Ms. Surabhi Sinha, Advocate Present for the Respondent: Mr. R.K. Maji, D.R. ORDER Per: S.K. Mohanty These appeals are directed against the impugned order dated 31.01.2013 passed by the Commissioner of Central Excise, Jaipur, wherein Central Excise Duty demand of ₹ 1,50,60,802/- was confirmed alongwith interest and equal amount of penalty was imposed on M/s. Kamdhenu Ispat Ltd. (for short, the appellant company ). Further, penalty of ₹ 5,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order at the stay stage itself and remanded the matter back to the adjudicating authority for cross-examining the witnesses, whose statements were relied upon by the adjudicating authority for confirming the adjudged demand. Pursuant to the order dated 05.12.2011 of the Tribunal, the jurisdictional Commissioner of Central Excise completed the de-novo adjudication proceedings and passed the impugned order dated 31.01.2013, in confirming the entire adjudged demand, which was earlier confirmed vide order dated 01.04.2011. The findings of the adjudicating authority are summarised herein below:- (i) Various witnesses were called for cross examination, but they did not appear. One witness Sh. Atul Bansal responded to the letter sent to him, wherein he submitted that he had nothing to do with the case. Accordingly, he held that it was not a case of denial of opportunity of cross-examination to the appellants, rather the persons, who were called for the purpose did not turn up. Thus, failure of persons to appear for cross-examination did not vitiate the proceedings, especially in view of the fact that none of the persons whose statements were relied had retracted from these statements, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be relied upon for confirmation of the adjudged demand. 3.1 With regard to the reference of four truck numbers contained in the loose sheet recovered from the appellant's factory premises, the ld. Advocate submitted that the goods were sold from the Khori Depot, which is located at a distance of 12 Kms. from the factory; that sale of four consignments were duly reflected in the books of accounts maintained at such Depot. He also referred to the statement dated 08.02.2005 recorded from Shri Karamchand Swamy, stating that labourers with vehicles were sent from the factory to the Depot, who after un-loading the goods brought back the acknowledgement receipts and for that purpose, the toll plaza receipts of HSRDC Ltd. were attached thereto. As regards alleged receipt of 78.22 MT of M.S. Ingots, the ld. Advocate has referred to the statement dated 09.01.2009 recorded from Shri Satish Aggarwal, wherein he denied having received such quantity of M.S. Ingots through the GRs of Shree Ganesh Road Lines. Thus, the ld. Advocate submitted that in absence of tangible evidence produced by the Department regarding receipt of goods in the factory, third party evidence cannot be relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority for confirming the demand. In these circumstances, we find merits in the contention of the appellants that the applicant has right to cross-examine those witnesses. In these circumstances, we find that the impugned order is passed in violation of principle of natural justice, hence set aside. 7. On perusal of the Final Order dated 05.12.2011 of the Tribunal, it reveals that the original authority was directed to afford opportunity of cross-examination of the witnesses, whose statements were relied upon for confirmation of the adjudged demand. Though, pursuant to the direction of the Tribunal, the original authority had called the witnesses for cross-examination, but they did not tender themselves for the same. We find that the Department has not made any serious efforts to ensure the presence of the witnesses. Since the witnesses did not appear for cross-examination, the original authority should have given a clear finding regarding application of provisions of Section 9 D (1) in the present proceedings. In this context, the law is well settled that admissibility of evidence is required to be followed in the adjudication proceedings, wherein the adjudicating authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her evidence. In fact, the correct course of action would have been to confront Shri Agarwal with statement of dealers and brokers so that the facts of the case could have been brought out. The dealers issued due invoices and the same were entered into statutory records of the main appellant. If the statements of the dealers were contrary to these statutory records, then it is necessary to have much stronger corroboration to discount statutory record ; (d) the appellant s contention regarding payment of commission of 1.1% to the sellers has got much force and payments were made through cheque. Though indication was given in the statements by the dealers that such payment in cheque were returned in cash, the details to whom such return was made is not explained; (e) the principle of preponderence of probability can be applied only when based on available evidence a reasonable person can make an inference regarding existence of a particular fact. The evidences which were discussed in the impugned order fall well short all the requirement even to apply the principle of probability. 9. In view of the analysis, as recorded above, we find that the evidences available in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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