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TMI Blog2020 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Four Seven Hundred and Ninety only) against M/s Amit Weaving Mills Pvt Ltd, Ichalkaranji under the provisions of Section 11A(2) of the Central Excise Act, 1944 read with the proviso to Section 11A(1) of the Central Excise Act, 1944 an direct them to pay the said confirmed duty forthwith. (2) I confirm the demand of interest at appropriate rate under the provisions of Section 11AB of the Central Excise Act, 144 on the aforesaid confirmed demand amount and direct the M/s Amit Weaving Mills Pvt Ltd to pay the same forthwith. (3) I impose penalty of Rs. 48,84,790/- (Rupees Forty Eight Lakhs Eighty Four Seven Hundred and Ninety only) upon M/s Amit Weaving Mills Pvt Ltd, Ichalkaranji, under the provisions of Section 11AC of the Central Excise Act, 1944. (4) I impose penalty of Rs. 48,84,790/- (Rupees Forty Eight Lakhs Eighty Four Seven Hundred and Ninety only) upon Shri Rajendra Kumar Mohatta, Managing Director of M/s Amit Weaving Mills Pvt Ltd, Ichalkaranji, under the provisions of Rule 26 of the Central Excise Rules, 1944. (5) This order is issued without prejudice to any other action that may be initiated under the provisions of the Central Excise Act, 1944 or under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facility of deemed credit as provided under Notification No 06/2002-CE(NT) dated 01/03/2002 should not be denied to them; iv. Interest at appropriate rate on the said demand amount should not be recovered under the provisions of Section 11AB of the Central Excise Act, 1944; and v. Penalty should not be imposed on them under the provisions of Section 11AC of the Central Excise Act, 1944. 2.4 The show cause notice as adjudicated by the Additional Commissioner as per his order referred in para 1.2, supra. 2.5 Aggrieved by the order of Additional Commissioner, appellant filed the appeal before Commissioner (Appeals). The appeal filed by Appellant was dismissed by the Commissioner (Appeal). 2.6 Aggrieved appellants are in appeal before us. 3.1 We have heard Shri Mayur Shroff, Advocate for the Appellant and Shri N N Prabhudesai, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants, learned counsel submitted that- i. The entire demand is based on 583 Delivery Challans cum packing slips purportedly provided by an informer. During the course of visit of the officers on 13.01.2006 in the premises of appellant nothing was recovered and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge is to the order of Commissioner (Appeal), dropping the penal proceedings against the respondent who was the Managing Director of the Appellant at the relevant time. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Section 9D of the Central Excise Act, 1944 reads as follows: "9D Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on 01.02.2008, Shri V B Gaikwad, Advocate and Shri Giriraj Mohatta Director appeared before me for personal hearing. Though the personal hearing for fourth time was fixed on 22.04.2008 for the purpose of cross examination of the persons as per the list furnished by M/s Amit Mills vide their letter of 28.02.2008, nobody turned up for hearing/ cross examination of persons although they had furnished list of persons to be cross examined vide their letter dated 28.02.2008 received in this office on 03.03.2008. I have examined the contents of their letter and find that the reasons are not given for cross examination. I find that the case is made out on the basis of statements and other documents form part of evidence in this case. As such, grant of cross examination is not required in this case." From this para of order, it appears that adjudicating authority has in the first instance allowed the request f cross examination and fixed the date for cross examination on 22.4.2008. However since the cross examination did not happen on the appointed day he held the same to be irrelevant. 4.5 While dealing with the issue of cross examination, Commissioner (Appeals) has in para 4.3 of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity/ Commissioner (Appeal) that the opportunity was extended and since cross examination was not done on the appointed date, the bar of Section 9D has been successfully crossed. While making this observation, we are not observing that appellant could prolong the adjudication proceedings indefinitely by making the request for cross examination a then choosing not to appear on the day appointed for cross examination. Hon'ble Apex Court has in case of Rasheed [Order dated 30.10.2018 in Criminal Appeal No 1321 of 2018 arising out of SLP (Criminal) 4652 of 2018)] 11. While deciding an Application under Section 231(2) of the Cr.P.C., a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration: * possibility of undue influence on witness(es); * possibility of threats to witness(es); * possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; * possibility of loss of memory of the witness(es) whose examination in-chief has been completed; * occurrence of delay in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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