TMI Blog2021 (12) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... s undelivered. The appellant himself at the time of personal hearing on December 13 had acknowledged that said Shri Brajesh Singh was untraceable. The said Brajesh Singh was the appellants ex-employee but got untraceable due to which the appellant were neither able to contact him nor were in position to provide his alternative address. The department also reflected its inability to trace said Brajesh Singh. It is under said circumstances that the Original Adjudicating Authority proceeded to decide the matter on merits, in compliance of the directions of remand. In the given circumstances, it was the duty of the appellant to make said Shri Brajesh Singh available or at least Shri Abhishek Nandwani and Shri H K Nandwani for their cross ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative for the Department ORDER The appellant herein are engaged in the manufacture of Khaini . Acting on an intelligence that they were clearing their goods without payment of duty that the factory premises of appellant were searched by the officers of Central Excise on 18.07.2006 in the presence Mr. Abhishek Nandwani, partner of the appellant and two other independent witnesses. Certain incriminating records were resumed from the said search. It was thereafter the statement of Shri Abhishek Nandwani was recorded on the date of search itself and thereafter on 31.07.2006 also. After recording the statement of Shri Brajesh Singh, Manager of the appellant and Shri H K Nandwani, proprietor of M/s. Deepak Exports and partner wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jesh Singh, the employee of the appellant responsible to maintain and look after the quality of the products. The said request has never been considered. Learned Counsel impressed upon the same to be violation of section 9D of Central Excise Act, 1944 and as such the denial of natural justice to the appellant. It is submitted that said Shri Brajesh Singh was the technical person who had no knowledge of sale and purchase. Accordingly his cross examination was utmost crucial as far as the defence of the appellant is concerned. The denial thereof is alleged to be unreasonable and unrational. He relied on the following case laws: 1. J K Cigarettes Ltd. vs. CCE [2009 (242) ELT 189 (DEL)]; 2. Basudev Garg vs CC [2017 (48) STR 427 (DEL)]; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the alleged clandestine removal. Appeal is accordingly prayed to be dismissed. 7. After hearing the rival contentions, I observe and hold has follows: The main contention of the appellant is the denial of opportunity of hearing and denial to cross examine Shri Brajesh Singh. In this context, I observe that pursuant to the directions of remand vide Final Order No. 57092/2017 dated 12.9.2017, the original adjudicating authority had given the opportunity to cross examine Shri Brajesh Singh. The notice was served to the parties on three different occasions. It was served on available address but were returned by the postal authorities as undelivered. The appellant himself at the time of personal hearing on December 13 had acknowledged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, cannot be denied Accordingly it is held that the Commissioner (Appeals) has rightly relied upon the same and has rightly relied upon the decision in the matter of Shalini Steels Pvt. Ltd. vs. CCE, Hyderabad reported as [2010 (258) ELT 545 (Tri-Bang)]. Further, it is observed that only defence taken by the appellant to challenge the recovered notebook based whereupon the demand has been confirmed is that Shri Brajesh Singh, was preparing those notes at the instance of the appellant s competitor i.e. M/s. Kuber Group, I find no irrationality in the order of the Commissioner (Appeals) in para 12.3 of the Order under challenge while not accepting the said submission. There is no apparent denial for the entries on those private note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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