TaxTMI 
TaxTMI 
2016 (12) TMI 1057
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....l memorandum and the written submissions inter alia submits as under: i) The dispute is mainly of undervaluation.The appellant was availing the benefit of small scale exemption granted under Notification No.75/86 dated .3.86 as amended. The appellant during the material time had been selling goods directly to their customers as well as transferring goods to their depots. From the depots, the goods were sold to the retailers. The appellant had got ex-factory wholesale price and price list was also there. The dispute is that the sale price from the depots was shown much lesser than the prices on which the goods were sold to their customers. The Department relied on certain documents viz. Cash Book, Bills and Challans and also the statements from the buyers of goods from their depots. The calculation of duty was made on the basis of the alleged sale price of goods to the retailers from their depots. ii) The reliance on the statements of different retailers was challenged and their cross-examination was during first remand of appeal before the Hon'ble CESTAT allowed but the cross-examination was not also completed before Commissioner of Central Excise Under the circum....
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....and refused". In case of the following three, they did not appear for cross-examination on 8/8/2007. (i) Sri Khagen Sarkar (ii) Md. Sirajuddin (iii) Sri Arabinda Guhathakurata Commissioner further mentions in the impugned order that following four persons appeared before him on 8/8/2007. (i) Md. Parvez (ii) Sri Suresh Pandey (iii Sri Tapan Paul (iv) Sri Arabinda Guhathakurata 7.1 Commissioner in the impugned order also mentions that Shri B.N. Chattopadhyay, (BNC) Sri M.L. Chatterjee (MLC) and Shri R. Chowdhuri (RC) appeared on behalf of the assessee before the Commissioner on 8/8/2007, that after seaing, the persons present in the chamber of the Commissioner for the purpose of cross examination the representatives of the assessees (BNC,MLC,RC) raised the issue of providing them copies of the relied upon documents and stated that after getting the copies of the relied upon documents they will go for cross examination. In this regard Commissioner in the impugned order in the last subpara of para 3 observes as under : "On the day of cross examination i.e. 8.8.07 on seeing the other persons present in my cham....
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....he above said date, statements were recorded in question, answer from duly signed by the person cross examined and Sri B.N. Chattopadhyay, Sri M. L. Chatterjee and the Commissioner of Central Excise as a token of proof of cross examination." 7.2 From the contents of the impugned order, we are of the considered view that there is no denial of cross examination to the assessee appellant and the contention of the assessee that the cross examination was not complete is having no sufficient force and cannot therefore, be accepted. 8. The demand confirmed against the assessee by the impugned order is mainly based on documents seized and the statements recorded which are on record and which are the relied upon evidences. 8.1 In case of claim of the assessee for taking benefit of SSI Exemption, the impugned order points out that the Hon'ble Supreme Court has decided this issue of SSC Benefit claim against the appellant. In this regard, the Commissioner in the impugned order inter alia observes as under: "4.2.2 It is seen from the records that statements were recorded from the following persons of the company on different dates by the officers of C.P.O. as mentioned agains....
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.... date of retraction 30.5.2002) can not be held as earliest opportunity and accordingly I am of the opinion that such retractions are nothing but highly belated after thoughts and I therefore hold that the statement are true/voluntary and are admissible as evidence in terms of Sec 36A of the CEA 44. Further in the case of:- IIlias Vs CC-1969-2SCR 613-1983 (13) ELT 1427 (SC-5 Member Constitutional Bench) The Hon'ble apex court had held that statement made before Customs/Excise Officers can be admitted 'as evidence'. In view of the above judgment of the Apex Court, which has become law of the land, I have no hesitation to further hold that statements given by different persons before the officers of C. P. O. (Central Excise Officers) to be valid. It is also observed that none of the exployees of the assessee viz. Sri J. K. Soni or Sri Mohindralal Datta or its Director Sri D. K. Das have ever dinied or retracted their voluntary statements dated 7.3.91, 12.3.91 and 19.3.91 respectively. The assessee have also not denied or disputed the existence of Price list (seized record serial no. 7/EMKAY/D/91). The assessee's contention that the price....