TMI Blog2017 (12) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the entries found in scribbling pads, gate register as well as regenerated invoices. This clearly establishes the charge of removal of ingots without payment of duty and confirms the practice of multiple transportation under the same invoice. Cross-examination of witnesses - Held that: - We find that only one of the statements recorded from Shri Jawahar has been retracted subsequent to the date of recording. However, Shri Jawahar has confirmed the facts in his subsequent statements nullifying the retraction. In the absence of retraction by any of the other witnesses, the denial of cross-examination does not vitiate the proceedings. The adjudicating authority has confirmed the demand of duty of about Rs. ₹ 7,52,843/- on the basis of documents recovered from such proceedings and whose veracity has been proved from the corroborative evidences like regenerated invoice and gate register evidencing the clandestine removal of the ingots by the assessee - demand upheld. Penalty u/r 26 of CER, 2002 on Shri Paramasivam, Managing Director - Held that: - Shri Paramasivam, Managing Director has admitted the clearance of excisable goods without payment of duty as is eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gots covered by the said invoice to M/s. Gasha Steels and returned the documents as instructed by Shri Karunanidhi, Cashier of the assessee-company. (iv) A computer was seized from the factory of the assessee during the course of search operation and the data available therein was transferred to a CD. By the process of regeneration, two invoices bearing same serial No.181 with dates of issue as 27.7.2003 in favour of M/s. Kariraly and invoice 28.7.2003 in the name of M/s. Gasha Steels for quantities 11.54 MT and 10.76 MT respectively were found. In this connection, when Shri Malarmannan, Accounts Assistant of the assessee, who was in charge of the preparation of invoices, was questioned, he admitted in his statement dated 29.7.2003 that he used to generate invoices with the same number more than once and used to delete such invoices from the computer. The invoices re-generated from the computer bear the same number 181 which was also recovered from the possession of the driver Shri Suresh Babu. (v) A gate register maintained at the factory gate was recovered by the departmental officers. This register was showing details of vehicles that entered and exited with time of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue has filed appeal against that portion of the impugned order in which duty demand to the extent of ₹ 49,36,338/- was dropped. 3. With the above background, we heard Shri B. Venugopal, the learned advocate for the assessee and Shri Paramasivam, the Managing Director as well as Shri Pakshirajan, learned DR representing the Revenue. 4. Shri B. Venugopal, learned advocate highlighted the following grounds in the appeal made by the assessee and the Managing Director. (i) During the course of investigation, the department had recorded the statement of various persons. During the course of adjudication, a request was made by the assessee before the adjudicating authority for cross-examination of 10 witnesses whose statements were relied in the proceedings. However, the adjudicating authority has allowed the cross examination of only one witness viz., Mr. Sasidharan Pillai, Assistant Executive Engineer of KESB. In terms of Section 9D of the Central Excise Act, 1944, before the statement of any witness is used during the course of any quasi-judicial proceedings, the same is required to be admitted by the adjudicating authority, then the witnesses are required to be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des and peruse the records. 7. At the outset, we consider the grounds advanced by the department in their appeal. In the show-cause notice, demand has been raised for the period May 2000 to July 2003 by working out the total quantity of ingots manufactured on the basis of the estimated production per month. The department estimated, on the basis of power consumption by the assessee, that each heat can manufacture 3 MT of steel ingots and in a day as many as 14 heats can be manufactured by the assessee using the equipments installed in the factory. However, taking into account various factors, it was estimated that a reasonable production can be arrived at by taking 10 heats per day. Taking the number of working days in a month as 26, quantity produced in a month was derived as 780 MT, projecting the production on the basis of the above calculation for 39 months, the total quantity manufactured was estimated and duty demand was proposed in the show-cause notice. 7.1 The adjudicating authority, however, did not uphold the demand estimated on the basis of the above theoretical calculation as above. During the course of examination of the witness, Mr. Sashidaran Pillai, Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained record of goods cleared clandestinely. 8.1 Some of the entries found in the scribbling pads have been corroborated by other evidences. From the computer, recovered from the factory premises, certain invoices were regenerated and printed. It was noticed that three invoices, all bearing same Sl. No.181, were found to have been issued on three different dates i.e., 27.7.2003, 28.7.2003 and 29.7.2003 in the name of three different customers showing different quantities. It was further noticed that another invoice bearing same Sl. No.181 was recovered from the possession of the driver of the vehicle Mr. Suresh Babu who admitted that the goods covered by the invoice in his possession was indeed delivered to the customer M/s. Gasha Steels. Shri Malarmannan, Accounts In-Charge admitted in his statement that he was in-charge of preparation of invoices and further admitted issuing three invoices with the same number 181 on three different dates. The invoice number, quantities and date pertaining to invoice No.181 tallied in respect of the entries found in scribbling pads, gate register as well as regenerated invoices. This clearly establishes the charge of removal of ingots without ..... 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