TMI Blog2004 (8) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ond doubt. It is true that more than one opportunity of hearing had been offered to the appellants but as it happened it would appear from the record that the ultimate date of hearing prior to the adjudication was in Nov., 1996. On that date, the ld, counsel appearing for M/s Banco Aluminium in his own personal court case was away from Vadodara. Therefore, it may be in the interest of justice to allow the facility of cross examining the witnesses to this appellants and for this purpose the case is remanded to the Commissioner of Central Excise, Vadodara considering the fact that the cross examination was, in fact, promised to them during the personal hearing. The Ld. D.R. pointed out that there may be difficulty for the Commissioner to ensure presence of witness to be cross-examined after such a lapse of time since the events in the case has been in the year 1992. Having regard to this submission, we direct that the appellants should co-operate in the culmination of the de novo adjudication within the reasonable time. The witnesses will have to be summoned by the department and if their presence cannot be ensured because of the practical difficulties, the appellants may be intimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th in this case when statements were recorded under Section 14 of the C.E. Act. The said statements have not been retracted. There is no allegation of any coercion or threat. There is no allegation that the facts stated in the statement are not voluntary or true. There is no challenge to the statement on merits or substance. Merely alleging that the statement must be discarded because the person did not turn up for cross-examination in spite of summons without making out a case on merits for discarding the statement is going beyond the scope of the quasi judicial proceedings. The statement of Shri Ravindra Kumar Jain is thus a valid piece of evidence and cannot be discarded. The noticee himself has accepted that a statement recorded under Section 14 can be admitted as evidence. Immediately after having stated this in their reply dated 31-03-1998, they have gone ahead to state that the same has to be proved by the department. When there is no challenge to the statement on merits the stand of the notice is self contradictory. 10. The cross-examination of (i) Shri Ravindra Kumar Jain, Proprietor of M/s. Siddharth Metals Products; (ii) Shri Dinesh Chandra Gupta, Accountant, Sales O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of all the efforts made, it has not been possible to ensure the presence of Shri Ravindra Nath Jain, proprietor of M/s. Siddharth Metal Works. All these facts were intimated to the learned Advocate who remained present for the hearings from time to time. 13. The fact that Shri Ravindra Nath Jain did not remain present does not mean that his testimony has to be discarded as being not admissible as evidence. As indicated earlier, it has to be remembered that these proceedings are not judicial proceedings having procedural trapping of the Evidence Act. What is essential is with compliance of principles of natural justice. In such proceedings, it is also not mandatory that the case in to be proved to the hilt beyond any doubt as is the case in criminal proceedings. In quasi judicial proceedings of this kind, it will be sufficient if the evidence indicates that preponderance of possibility was for the irregularity committed by the noticee. From this angle it is relevant to note Shri R.N. Jain had admitted in his statement that to make good their loss because of the lower sale rate as compared to the rate given in the central excise gatepasses, they used to supply lesser quantity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn, supplied the material to M/s. Banco Aluminium Ltd. M/s. Banco Aluminium Ltd. showed receipt of aluninium sheets/coils on the basis of Central Excise gatepasses/invoices received by them and not the actual quantity of aluminium sheets/coils received by them. This fact had been clearly admitted by Shri Arvindbhai Jhadvji Shimpi, Excise Clerk of M/s. Banco Aluminium Ltd., who maintains the Central Excise records. He had admitted that M/s. Banco Aluminium Ltd. showed higher receipt of aluminium sheet/coils in their RG-23-A Part-I account and accordingly utilised excess Modvat credit, and that M/s. Banco Aluminium Ltd. had not been showing receipt of the correct quantity. He had further stated that even in their private records, they had not shown the correct quantity received. The statement has not been retracted nor alleged to recorded on the basis of any coercion or threat etc. Even at the time of personal hearing before me, it was never the allegation that these statements are not correct. Therefore, I see no reason to discard this allegation and believe simply the word of M/s. Banco Aluminium Ltd. at this belated stage that the quantities received by them were correctly reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the officers for cross-examination before the adjudicator cannot lead to any other conclusion than a "failure to establish the case against the appellants". We conclude the same. 4. There were others who were summoned but they did not appear. No material exist of action taken against such persons so summoned, but who did not comply the same. Action by filling suitable complaints in the Magistrates count for non-compliance of a summon was required to be taken. The absence of such material and action, only indicates, the nature of a desire on part of the department i.e. not to comply with the direction of the Tribunal to establish the case 'beyond doubt'. 5. Perusal of the order, extracted herein in extensio also indicates that the adjudicator has not applied his own mind but appears to be led by the decision arrived at by the earlier adjudicators. There is an underlying current to somehow confirm the liabilities. Such approach cannot be upheld. 6. Since Tribunal orders in Remand are not been complied with and there appears to be no desire to do so, no purpose will be served, now, once again in remanding the matter back to the adjudicator. We would, reluctantly have to concl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
