TMI Blog2017 (10) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... viewed through the lens of the Tribunal's earlier final order. The facts on record indicate that in the cross examination Shri P. Duraisamy has retracted the entire statements given by him. He has also categorically denied ever having been the Technical Director of the company. He has informed that he was only Technical Consultant which at the most, would make him a third party to the proceedings. Statements made by other persons have also been retracted either by way of retraction or in their cross-examination - the entire bed rock of the department s case against the appellant namely, the statement of Shri Duraisamy and the documents allegedly authored by him, have crumbled in the aftermath of the cross examination of the said person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant on 17.8.99. Statements were recorded and certain documents were recovered. Investigation was also extended to the brokers and buyers of the appellant. From the investigations so conducted, it appeared to the department that appellant had indulged in clandestine removals of dutiable cotton cone yarn without payment of duty, and clandestine removal of dutiable cotton cone yarn without invoices, fictitious production and clearance of exempted cotton yarn, misdeclaration of the count of yarn to suppress the assessable value and that they had disguised removal of cone yarn for conversion into yank yarn, however diverted it for sale. Accordingly, a show cause notice was issued inter alia to the appellant proposing demand of an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Shri Duraisamy were also relied on by the Commissioner. In the circumstance, we have no doubt regarding the necessity of giving the appellants a further opportunity of cross-examining Shri Duraisamy, who is said to be willing to be cross-examined. Learned Commissioner has expressed his inability, in the impugned order, to allow such an opportunity on account of the embargo placed on him under Section 33A ibid. In the event of the case being remanded to him, learned Commissioner can get over this embargo if any. For the ends of justice, we set aside the impugned order and remand the case to the Commissioner for de novo adjudication. The appellants shall be given a reasonable opportunity of cross-examining Shri Duraisamy and of being heard. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .99; the entire statement was directed by officers and he had only signed same; that he does not agree with contents of the said statement; He neither maintained nor has any connection with any of the documents namely, diaries, supposed to have maintained by appellant, two private note books captioned as cone sale books and certain documents of month wise profit and loss account from January 98 and June 99. (iv) No other has been put forth by department to show clandestine removal said excess receipt of raw material, consumption of electricity, employment of labour; detecting account of goods found in the premises shortage or excess input or finished in the factory premises. (v) The department could have easily confirmed with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was not retracted by him till date of cross examination. The records and documents have also revealed that appellant was maintaining two sets of records showing date wise details of removals and names of consignees and quantity despatched under the heading cone sales book . 5. Heard both sides and have gone through the facts. 6. Discernably, the impugned order is a resultant of the remand order dt. 30.08.2006 of CESTAT Chennai. As is evident, the Tribunal has held that the crucial evidence accepted by the Commissioner that sustaining the allegation of clandestine removal of dutiable goods by the appellant is the statement of P. Duraisamy and the documents authored by him. The Tribunal also observed that statement of brokers and bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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