TMI Blog2000 (12) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner based upon the entries made in two small note-books recovered from one Shri Subhash Singh during the course of visit of the Officers in the appellants' factory on 31-7-1998. The appellant firm has taken a stand before the Commissioner that said Shri Subhash Singh was not a worker in their factory and as such, the note-books recovered from his possession are not relatable to them. They have also made a request for cross-examining said Shri Subhash Singh, which request was turned down by the adjudicating authority by observing that there was no justification for allowing the cross-examination. The appellants through their Advocate, Dr. Samir Chakraborty, have made a grievance of the said refusal by the adjudicating authority, by terming the said refusal as wholly erroneous, arbitrary, unreasonable, perverse and untenable. It has been argued that the action of the Commissioner in refusing the cross-examination of said Shri Subhash Singh whose alleged statement and purported hand-books allegedly recovered from him, formed the very basis of the findings of the Commissioner, is a gross violation of principles of natural justice and fair play and has thereby vitiated the said Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Hindusthan Lever Ltd. v. CCE reported in 1996 (87) E.L.T. 385 (Tri.); (iii) Shakti Chemical Industries v. CCE reported in 1995 (76) E.L.T. 410 (Tri.). 5.He also drew our attention to that portion of the impugned Order where the Commissioner relied upon the statements of Shri Rajib Mukherjee and Shri A.K. Pandey. He submitted that both the statements were retracted by the said persons immediately thereafter, and no reasons have been given by the adjudicating authority as to why the said retracted statements should be relied upon for arriving at a finding based on the statement of the appellants. In any case, he submitted that there is nothing in the said statement to reflect upon the appellants' clandestine activities. 6.In view of the foregoing, he prayed for setting aside the impugned Order along with the penalty of 100% of the alleged duty amount, imposed upon the appellants and the interest amount. 7.Shri V.K. Chaturvedi, learned SDR for the Revenue has reiterated the findings of the adjudicating authority. It has been argued that apart from the above note-books, statements of other persons were also there, which corroborate the factum of manufacture a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee's factory were available in the said two note books recovered from Shri Singh when he is not at all a worker of the noticee's company. I am, therefore, of the conclusive view that Shri Singh was very much concerned with the said company and he was instrumental to such activities of the company as to the accountal of production and removal of the alleged product without payment of duty on private record against which there will be no entry in the statutory Central Excise records. The list of workers, furnished in which Shri Singh's name is not there will have no evidentiary value since the same is not a vital record to accept that Mr. Singh is not a worker of the assessee's company. It is also a modus operandi that the person who has been engaged by the assessee to keep such an account of unaccounted production and removal has not been listed as a worker of the company. In view of the fact that a clear-cut picture of the company of unaccounted production and removal for the alleged product of the company was available in the said two note books which was duly supported by a statement given by Shri Singh voluntarily accepting the said entries, no further corroborating evidence w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing Shri Singh to be cross-examined by the appellants. The apprehension of the adjudicating authority that the assessee is found to have attempted to extract a different reply from Shri Singh through the process of cross-examination, is based upon his pre-determination of the fact that Shri Singh is an employee of the appellants and he is predicting the result of the cross-examination. We are of the firm view that by denying the request of cross-examination of Shri Singh, the adjudicating authority has violated the principles of natural justice, especially when the entire case of the Revenue was based upon the note-books recovered from Shri Singh, and of the appellants was based upon their denial of Shri Singh being their employee. 13.We also agree with the learned Advocate that for establishing the factum of clandestine manufacture, the Revenue is required to establish the guilt beyond doubt. The entries in the note-books recovered from Shri Singh who have been denied by the appellants to be their employee, can at the most, create a doubt against the appellants, but cannot take the place of legal evidence so as to establish the charge against them. Accordingly, we feel that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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