TMI Blog2023 (11) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant herein. In the absence of such corroborative evidence, statements which may have, otherwise, supported circumstantial evidence are of no relevance. Furthermore, the statements themselves had not been subject to the test of section 9D of Central Excise Act, 1944 for deployment towards the findings in the proceedings. The evidence on which the duty liability, and penalties, have been fastened on the appellant herein, has not been established even by preponderance of probability owing to non-establishment of relevancy of statements, as set out in section 19 of Central Excise Act, 1944, the matter requires fresh appreciation - Appeal allowed by way of remand. - HON BLE MR C J MATHEW , MEMBER ( TECHNICAL ) And HON BLE MR AJAY SHARMA , MEMBER ( JUDICIAL ) Shri Kamal Jeet , Advocate for the appellant Shri Shyam Raj Prasad , Special Counsel for the respondent ORDER PER: C J MATHEW The appellant, Shri Raju Laxman Pachhapure, contends that no goods manufactured by him are concerned in this dispute. The appellant also contends that no plant and machinery belonging to him are concerned in this dispute. The appellant further contends that no premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel further submitted that statements of the appellant had been recorded in October 2014 and in September October 2015 during which ownership of the premises and ownership of the vehicles seized during raid, as well as receipt of rent in cash from the purported tenant, one Sukhadeo Ramgonda Patil, were admitted. According to Learned Counsel, it was solely on the basis of these statements and, that too, in ex-parte proceedings, that the matter came to be adjudicated. Our attention was also drawn to 24. Before dealing with the main issues, two points need to be discussed here. 1 observe that Noticee No.l and Noticee No. 2 in their respective written defence reply had sought permission for cross examination of witness. Food Safety officer, police officers etc. Their request for cross examination was examined and found to be made with an ulterior motive to dely the proceeding and without any cogent and specific reason Therefore, considering allegations made in the notice, available evidence on record and written defence reply Filed by them, their request for cross examination was rejected on the grounds mentioned below. a] Whether the noticee is entitled to cross-examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply 10..7. 2019 and 12,7.2019 after a period of nearly fifteen months of date of receipt of the notice.' Though all the legible relied upon documents had already been supplied along with the notice to both the Nocicees, Noticee No. 1 and Noticee No. 2 requested vide letter dt. 27.12.2018 to supply copies of some of the relied upon documents . which according to them, were nor legible and were incomplete to enable them to file reply to the notice. Had this been the fact, they should have made the request immediately on receipt of the notice. It is pertinent to note here that they kept quiet till they received a letter of personal hearing and made the application just one day before the dare on which personal hearing was fixed ( 27.12.2018). They came up with such request after nearly eight month of the date of receipt of the notice. Noticee No. 1 and Noticee No. 1 also requested to supply Marathi version of the notice. They were informed vide this office letter of even No. 24.1.2019 that Marathi translation of the notice could not be supplied citing the provisions of the Official Languages Act. 1963 and the Official Languages Rules. 1976. They were ,however, supplied copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted more than three times in a proceeding. However, in order to afford natural justice and to avoid multiplicity of litigation, personal hearing was granted as many as eight to nine times in this case but all was in vain. 24.5 In such circumstances. I am of the opinion chat principles of natural justice have duly been complied with in this case by allowing them, sufficient period to defend their case by way of filing defence reply and opportunity of being heard by attending personal hearing. 24.6. Considering attitude of these Noticee No. 1 and Noticee No. 2 I find that their sole intention is to drag the adjudication proceedings, as long as possible. However, the matter cannot be kept in abeyance indefinitely on fimsy grounds. As regards Noticee No. 3, he has neither filed his reply nor attended personal hearing nor made any communication with this office. Hence, I am constrained to proceed to adjudicate the case ex parte against Noticee No. 3 and against Noticee No.1 and Noticee No.2 on the basis of evidence on record and the reply filed by them. therein. 5. Learned Counsel further submitted that the adjudicating authority had taken note of 13.1 The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations in the notice by adducing any evidence. Therefore. I am of the opinion that there is sufficient evidence on record to prove guilt of Noticee No. 1 and hence non examination of any witness would in no way affect the matter. 7. He submitted further that their request for cross-examination of the panch witnesses, as well as officers of the Government of Maharashtra involved in the raid and seizure, had been disallowed by the adjudicating authority. He, therefore, pleaded that the entire records on the basis of which the adjudication had been concluded was inadmissible as evidence and, therefore, the findings are flawed. He place reliance upon the decision of the Tribunal in Arya Fibres Pvt Ltd v. Commissioner of Central Excise, Ahmedabad-II [2014 (311) ELT 529 (Tri.-Ahmd)]. 8. Learned Special Counsel appearing for the respondent-Commissioner submitted that the adjudication order could not be faulted inasmuch as Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 prescribes certain presumptions which cannot be discarded in the light of the ban on manufacture and distribution of pan masala in the state of Maharashtra. Learned Special Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is demonstrated non-participation by the appellant. 11. Though that notwithstanding, it is also on record that the requests of appellant for cross-examination of officers of the Government of Maharashtra, as well as of the persons whose statements had been recorded and the panch witnesses, were not allowed. All of these were summarily denied without intimating justification of not being germane to the conclusion set out in show cause notice. 12. We find that the seizure had not been effected by the central excise officers. We also take note that, other than the statements of the appellant herein and few others, no effort had been made by the central excise authorities to link procurement of raw materials and channelizing of the finished product with the appellant herein. In the absence of such corroborative evidence, statements which may have, otherwise, supported circumstantial evidence are of no relevance. Furthermore, the statements themselves had not been subject to the test of section 9D of Central Excise Act, 1944 for deployment towards the findings in the proceedings. As the seizure had not been effected by the central excise officers and the proceedings thereof w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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