TaxTMI 
TaxTMI 
TaxTMI 
2015 (11) TMI 214
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....ot relevant in the present appeals). In the search carried out in the appellants office in Mumbai among the various documents recovered, there were three diaries which are described as item No.23, 24 & 26 of the Panchnama. Shri Pravesh Gautam, who is the Director of the appellant No.3 was present and his statement was recorded on that date and also on various dates. The appellant explained the contents of these diaries. The diaries contain the details of MS ingots purchased by them from various manufacturers of MS ingots. The details included consignment-wise, date, rate, supplier's name, broker's name, etc. Another diary (No.26) contains the details of the payments made. All the three diaries were explained by Shri Gautam in his statement. Based upon the details available in these diaries it was found that the appellant No.3 have received MS ingots from number of manufacturers and such MS ingots were both with payment of duty and also without payment of duty. Based upon the tabulation made from these diaries, statement of appellant No.3 as also other persons viz., suppliers and brokers were also recorded. One of such supplier is appellant No.1 and Appellant No.2 is the Director i....
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....tam and in the absence of his statement, it cannot be said that all the entries are relating to the present appellant. Keeping in view this factual mistake committed by investigators , penalty cannot be imposed on the appellant. 3.1 Second submission of the learned Counsel was that the statement of Shri Pravesh Gautam, Director in the appellant company were recorded under duress and after recording of the statement, on the next day, the statements were retracted by him and under the circumstances statements made by him cannot be relied upon by the Revenue. 3.2 The third submission made by the learned Counsel was that he has asked for the cross examination of the supplier of the goods as also the brokers who have given the statement about the clandestine clearance of the goods without payment of duty. Such cross-examination was not allowed by the original authority and since the cross-examination has not been allowed, their statements cannot be relied upon by the Revenue; hence, the whole case of the Revenue has no merit. a) Slotco Steel Products Pvt. Ltd. Vs. CCE 2012 (281) ELT 193 (Del) b) Basudev Garg Vs. CC 2013 (294) ELT 353 (Del) c) CCE Vs. Parmarth Iron Pvt. Ltd., - 2010....
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....t, the appellant No.3 did not speak anything about Shri RL Gautam. Further, if there was any entry relating to M/s.Gautam Enterprises, the appellant No.3 should have said so in the statement and also clarified which are the entries relating to M/s.Gautam Enterprises. Even today, the Appellant No.3 not clarified which are the entries relating to Sarlia Steel, which are pertains to M/s.Gautam Enterprises. Under the circumstances, the issue raised is for the sake of raising the issue and is required to be out-rightly rejected. As far as the question of cross-examination is concerned, the learned AR submitted that the people to be cross-examined are co-noticees and calling them for cross-examination would imply them to admit the clandestine clearance and evasion of duty during cross-examination which is violation of article 20 (3) of the Constitution of India. Learned AR relied upon the decision of this Tribunal in the case of Maya Mahal Industries reported in 1995 (80) ELT 118 (Tri). Under these circumstances, co-noticees could not have been called for cross-examination and this plea is only to delay the adjudication proceedings. As far as appellant No.4 & 5 are concerned they have ad....
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....tement, the appellant No.2 did not speak of any retraction and also confirmed the contents of first statement. Under the circumstances, we are of the view that these retractions are of no consequence. 5.5 We find that the statements of Shri Pravesh Gautam, Director of Appellant No.3 were recorded over a period of more than one year and there are as many as nine statements. We do not find anything contradictory in these statements. We also find that in the subsequent statements including the ones which have not been retracted, Shri Pravesh Gautam has confirmed the details given in the initial statements. We have also gone through the retraction letters which do not indicate which portion of the statement is incorrect or recorded under duress. 5.6 Keeping in view the overall circumstances of the case and the contents of the statements as also the so called as retraction letter, we hold that the statements of both appellant No.2 as also Shri Pravesh Gautam as far as the contents relating to this case are true and correct and can be used as an evidence in the present proceedings and the retraction letter needs to be rejected outright. 6. Another contention of the learned Counsel was....
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....relevant documents and statements as stated in the detailed show cause notices issued to them, and they sent their replies to the show cause notices. Some of the appellants were represented by consultants. The appellants remained absent on various dates resulting delay in the proceedings. Statements of the two drivers of the vehicles from which contraband silver was recovered, the employee of the appellant Ashish Kumar Chaurasia and the statements of the persons who were travelling in the vehicles for taking the contraband silver to Delhi as also the statements of Ram Avatar Singhal, and the statements of independent persons before whom seizures were made clearly establish that all the appellants were persons concerned with prohibited silver and were liable to imposition of penalty under Section 112 of the said Act. In such a situation insistence for cross-examining one of them can be purely strategic with a view to raise a contention of violation of principles of natural justice. In almost all the cases such persons dealing in contraband would refuse to be cross-examined on the ground that they are accused of an offence and, had a fundamental right against testimonial compulsion u....