TMI Blog2002 (11) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... did not show the name of Shalimar Rubber Industries, the appellants herein under the said fictitious invoices did purchase huge quantity of carbon black from M/s. Universal Agencies. As noticed above, this witness was not examined by the Collector in the proceedings. Consequently, he could not be subjected to a cross-examination. In that background it becomes extremely difficult to place reliance on the so-called statement made by Shri Sunny P. Kunnath to the Inspector which according to the evidence of the Inspector himself made before the Magistrate was not recorded. On the basis of such evidence, in our opinion, it is not possible to come to the conclusion that there was such a clandestine purchase of carbon black from M/s. Universal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as also the Rules mentioned herein above. As a consequence he imposed a penalty of Rs. 11,33,467.72 on the appellant firm and also directed the confiscation of the seized tread rubber but gave a option to the firm to redeem the same on payment of redemption fine. He further imposed on the firm a penalty of Rs. 3 lakhs and a penalty of Rs. 20,000/- on each of the partners of the firm and directed the confiscation of the land, building, plants and machinery used in the manufacture of the said tread rubber, with an option to redeem the same on payment of redemption fine. 2.On appeal, the Customs, Excise and Gold Control Appellate Tribunal (the Tribunal) has confirmed the said order of the Collector. Consequently, the appellants are befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is on this basis a finding was arrived at in the adjudicatory proceedings against the appellants. 5.The Tribunal also in the impugned order placed heavy reliance on the statement allegedly made by said Shri Sunny P. Kunnath while affirming the finding of the Collector that the quantity of carbon black sold by M/s. Universal Agencies in fictitious names in 62 invoices were infact sold to the first appellant Shalimar Rubber Industries. It is on that basis the impugned orders came to be made. 6.It is relevant to note at this stage that the Department had in addition invoked the provisions of Section 9(l)(a)(b), (bb), (bbb) and 9(1)(c) of the Act and initiated criminal proceedings against the appellants in the Court of Additional Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords that the very same Shri Sunny P. Kunnath by a letter dated 22-6-1987 addressed to the appellants had denied the statement allegedly made to the Department and the said letter was produced before the Collector who according to the learned Counsel has erroneously rejected the same. It is on the above basis the learned Counsel pleaded that the Department has failed to establish its case against the appellants. 8.Shri T.L.V. Iyer, learned Senior Advocate appearing for the Department contended that there is sufficient material on record apart from the evidence of Shri Sunny P. Kunnath which implicates the appellants in regard to the charges levelled against them, that apart he contended merely because said Shri Sunny P. Kunnath has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of his order rejected this letter preferring to rely on the alleged oral statement made by said Shri Kunnath to the Inspector. While discussing this point the Collector observed "moreover, this letter was dated 22nd June, 1987 and addressed to M/s. Shalimar Rubber Industries, Perumbavoor, almost two months after the recovery of the invoices on 13-4-1984. This confirmation, I have no hesitation to state, is tailormade to the request of M/s. Shalimar Rubber Industries." We find it extremely difficult to accept this explanation of the Collector to reject the letter written by M/s. Universal Agencies. If the Collector can accept a statement allegedly made by a partner of the Universal Agencies which is not confirmed by his oral evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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