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2019 (8) TMI 379

..... of M/s Spraylac - records of production for the period of dispute are not available and that the charges of clandestine clearance have been inferred from lateral evidence - cross-examination of witnesses - principles of natural justice - HELD THAT:- The lack of any evidence pertaining to procurement of excessive raw material, or of shipment of finished goods, to the trading unit is not in dispute. It would appear that the statement of various individuals, that have been relied upon to substantiate the indirect evidence introduced in the form of submission to another statutory authority in a different context, viz., to secure of brand name, the discharge of liability of sales tax and the plea before the Settlement Commission by successor ent .....

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..... h the documents pertaining to M/s Sunshine Corporation was not available, stock of goods, under the same brand, manufactured by M/s Sunshine Paints, was found at the premises of the trader even though the records did not indicate any substantial transactions between the manufacturing entity and the trading entity. Relying on an affidavit filed before the competent authority for regulation of trade marks pursuant to an application for securing of brand SUNLAC and reinforcing its claim by the high turnover which was not reflected in the excise documents, the investigating authority, concluded that, with the data furnished for the purpose of sales tax assessment corroborating the turnover, the charge of surreptitious manufacture and clearance .....

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..... rtaining to production are unavailable, claims that confirmation of demand is not impacted by this deficiency as the statements that were relied upon in the adjudication order were never retracted. It is contended that the corroborative evidence obtained from the pen drives and computers of the appellant, admitted to contain correct records, sufficed to establish the allegations. It is further submitted that the later operator of the factory had approached the Customs and Settlement Commission and that the plea of any connection with the appellant herein appeared to be motivated by desiring to distance themselves from the admitted modus operandi and, coupled with erasure of records, was intended to avoid liability being fastened on them. Re .....

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..... , in Swadeshi Polytex Ltd v. Collector of Central Excise [2000 (122) ELT 641 (SC)] and that of the Hon ble High Court of Delhi in Basudev Garg v. Commissioner of Customs [2013 (294) ELT 353 (Del.)], was also cited. 7. The lack of any evidence pertaining to procurement of excessive raw material, or of shipment of finished goods, to the trading unit is not in dispute. It would appear that the statement of various individuals, that have been relied upon to substantiate the indirect evidence introduced in the form of submission to another statutory authority in a different context, viz., to secure of brand name, the discharge of liability of sales tax and the plea before the Settlement Commission by successor entity would necessarily have to be .....

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..... ction of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as .....

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