TaxTMI 
TaxTMI 
2015 (4) TMI 891
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....same in their factory and cleared on payment of duty. On 9.7.1998 the Central Excise Officers visited the appellants factory and carried out search in their premises. The Central Excise Officers after verification of stock prepared a panchnama and recorded excess stock of 254 pcs of MMF (grey fabric) and 4124 L.Mtrs of semi processed fabrics over and above the stock register, which were seized. They also found a pocket diary from the procession of Shri Ramchandra Megraj Sharma, Excise Clerk. The said officers recorded the statements of the Excise Clerk and partner of the Appellants (Appellant No.2) on 9.7.1998 and 10.7.1998. Further, on 1.1.1999 a statement was recorded of Appellant No. 2. The said officers also visited the premises of transporter. 3. A show cause notice dtd 5.1.1999 was issued proposing demand of duty alongwith interest and penalty on the basis of the pocket diary on Appellant No.1. It has also proposed to impose penalties on Appellant No.2, Shri Ramchandra M Sharma, Excise Clerk and M/s Moongipa Roadways Pvt Ltd, transport company. It was further proposed to confiscate the seized goods and plant and machinery. By the impugned order, the Commissioner of Central....
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....d the pocket diary. In this context, the Learned Advocate drew the attention of the Bench to the relevant portion of the reply to show cause notice. There is a clear discrepancy between the pocket diary and the transporters documents. In any event, the cross examination of the transporters were not allowed and therefore the transporter documents cannot be relied upon. He submits that the Central Excise officers had not examined the supplier of raw materials and the buyer, to establish the clandestine removal of goods. Learned Advocate also submits that confiscation of raw material is contrary to the provision of Rule 173 (Q) of the Central Excise Rule 1944. He relied upon the decision of the Tribunal in the case of Arya Fibres Pvt Ltd vs CCE, Ahmedabad II 2014(311)ELT.529 (Tri. Ahd.). 5. On the other hand, the Learned Authorised Representative for the Revenue drew the attention of the Bench to the relevant portion of the adjudication order in so far as the investigating officers during the cross examination had deposed that the panchnama was prepared in the presence of panchas and partner. Thus, there is no irregularity in the preparation of panchnama. He further submits t....
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....ket diary and clarified other issues. 7. On perusal of the Panchnama, I find that there are some blanks in the panchnama. The investigating officers during cross examination deposed that the blanks were due to an oversight. Shri Man Singh Yadav Inspector, Central Excise (now Superintendent), deposed on 21.8.2008 that regarding some blank space left in the panchnama was by an oversight. Shri Sandeep Hooda, Inspector, Central Excise (Now Superintendent) deposed on 21.8.2008 that he participated in the preparation of the panchnama and conducting inventory of stock in the factory. On being asked as to why 320 pcs were seized when as per diary there should be physical stock of 973 pcs and as per lot register, there should be 976 pcs, he stated that the seizure of that quantity of unaccounted goods were affected, which were available in the factory. Further, on being asked, on other issues, he stated that since considerable time has elapsed, he was unable to explain the exact reason, and he did not prepare the Annexure-A of the Panchnama. There is no dispute that some spaces in the Panchnama were left blank, which could not be explained by the investigating officers during the cross e....
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....was not mentioned in the lorry receipts but the other details of lorry receipts are tallied with the gate-pass book of the transporters. It is relied upon the grey register recovered from the transporters to corroborate the pocket diary. The appellant disputed grey register of the transporters and requested the cross examination of the transporters, which has not been allowed. 10. The Hon ble Delhi High Court in the case of J & K Cigarettes Ltd vs Collector of CE 2009(242)ELT.189 (Del) held that if the cross examination is not permitted, the documents cannot be relied upon. The Hon ble Delhi High Court in the case of Basudev Garg vs CC 2013(294)ELT.353 (Del.) allowed the appeal of the appellant held that documents cannot be used without giving them opportunity of cross examination. Hence, in the present case, there were discrepancies in the pocket diary and grey register as well as the documents of the transporters cannot be accepted as the cross examination of the transporters was not allowed. It is also disputed the contents of Lorry Receipts recovered from the transporter in so far as out of 17 LRs not a single LR is in the name of the Appellants either as consign....