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TMI Blog2000 (3) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... te for appellants and Ms. Aruna Gupta, ld. DR. 3.Briefly, the charges confirmed by order impugned are as follows and are for the period from 10-7-1982 to 9-5-1985 : - (1) Clearance of processed fabrics without duty payment though charges were collected through bills on letterheads. (2) Clearance of processed fabrics without proper duty payment as charges were partly collected through regular invoices and partly through bills on letterheads. (3) Clearances of processed fabrics without duty payment by misdeclaring nature of processing as "scouring" to fraudulently claim exemption, while actually goods were crinkled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is led by ld. Advocate. 8.For the 5th charge, ld. Advocate submits that M/s. Raj Intercontinental, Deccan Enterprises and Amaravathi Garments (on whose statements order impugned relied) had controverted their statements on examination. 9.Ld. Advocate submits that deptt. had relied on a number of statements of customers but had restricted cross-examination to 5 witnesses out of which only 3 were cross-examined. He also submitted that : (i) Vijayan Nambiar had exceeded authority to sign letterhead bills and could not be cross-examined. (ii) Prosecution in court on same facts had failed. (iii) Procedure followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es decision of Hon'ble Calcutta High Court in the case of Kishanlal Agarwal in AIR 1962 Cal. 180. 11.Ld. Advocate counters that in the very case cited by ld. DR, Hon'ble High Court has also held that proper opportunity to defend himself is necessary, and that Vijayan had signed all bills unauthorisedly, hence no other could explain the discrepancies. 12.We have carefully considered these submissions and records of the case. On a careful consideration, we are of the considered view that the Revenue is only required to sustain the allegation by establishing a preponderance of probability and not on any mathematical accuracy. Therefore, the appellants' acquittal in a court of law, where evidence is evaluated as per Evidence Act and accurate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this there could be no evasion is an unacceptable argument. Firstly, physical control did not mean that the factory and its gate will be policed by excise officers round the clock and on all days. Secondly, it also did not mean that each consignment, before clearance was allowed, was subject to checks on raw material accounts, contracts, all private records of the manufacturer like the letterhead bills, etc. 15.As far as the non-availability of cross-examination of witnesses is concerned, we are of the considered view that this does not constitute a fatal flaw in the order impugned. Firstly, the department's allegations are also based on documents viz. letterhead bills and factory invoices v. Customer's invoices which had been seized. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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