TaxTMI 
TaxTMI 
2017 (5) TMI 608
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....mesh Modi without payment of duty. Accordingly the demand of duty amounting to Rs. 6,03,857 and equal penalty was confirmed. The penalty of Rs. 1,50,000/- was also imposed on Shri. Mahendra Sohanlal Tank director of appellant company. Charge of the clandestine removal was based on the seized records from Shri. Umesh Modi wherein the details of receipt of clandestinely cleared goods were appearing as detailed below: Sr. No Name of the supplier as entered in the seized records Date from book no. Quantity in M.Ts Marked as 1. MITC 3 and 6 555.50 Annexure-I 2. MANU 5 and 6 606.79 Annexure-II 3. Shiv Sagar 3 and 6 137 Annexure-III 4. Mundraji 3 and 6 316 Annexure-IV 5.....
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....a Shri. Anil Lingade 9325415276 Shri. Umesh Modi stated that Sr. No.7 of the aforesaid chart name of the supplier indicated as GA is in respect of goods purchased from M/s. Saptashrungi. Statement was also recorded from director of the appellant company Shri Mahendra Sohanlal Tank, in his statement he agreed with the statement of Shri. Umesh Modi and accepted the clearance of the goods clandestinely to Shri. Umesh Modi. On the basis of above evidence the demand was confirmed. Being aggrieved by the Order-in-Original, appellant filed appeal before the Commissioner(Appeals) who upheld the Order-in-Original. 2. Shri. Ashok Singh, Ld. Counsel for the appellant submits that entire demand was raised on the basis of records recovered from....
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....s statement. In this circumstances statement of Mahendra Tank cannot be relied upon as except the statement which was retracted there is no evidence recovered from the appellant company to prove that goods have been clandestinely removed by the appellant company. The appellant during the adjudication requested for cross examination of the witnesses such as Shri. Umesh Modi, which was rejected. He placed reliance on the following judgments: (a) Commissioner of Central Excise Ws. Brims Products [MANU/BH/0524/2008] (b) Andaman Timber Industries V/ s. Commissioner of Central Excise, Kolkata - II [MANU/SC/1250/2015] (c) Sakeen Alloys Pvt. Ltd V/s. Commissioner of C. Ex, Ahmedabad [2013 (296) ELT 392 (Tri. Ahmd)] ....
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.... such as confessional statement of Shri. Mahendra Tank, Director of the company, records recovered from the broker and statement given by Shri. Umesh Modi regarding the clandestine purchase of the goods from the appellant company. As regard the retraction the same was sent by ordinary post which cannot be considered as retraction properly filed therefore the same cannot be accepted. As regard the cross examination, he submits that since the Ld. Commissioner observed that there are various evidences available against the appellant therefore cross examination is of no use and hence it was rightly rejected. He placed reliance on following judgments: (a) Saccha Saudha Pedi Vs. CC(I)Mumbai [2015 (328) ELT 609 (Tri-Mumbai)] (b) ....
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....overed from the Broker Shri. Umesh Modi, the statements of Shri. Umesh Modi and Shri. Mahendra Tank, director of the appellant company wherein he has accepted the clandestine removal. On careful perusal of the records I find that as regard the record recovered from Shri. Umesh Modi, records shows the name of supplier and the quantity cleared clandestinely by the various companies. As per the said records, in all other entries for the suppliers name, either name of the company or name of the concerned person of the said company is mentioned. Only in the case of entry which was related to the appellant shows name of GA. However, GA neither indicate the name of the factory nor to the peron, therefore from the glance of the word GA it cannot be....
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....ing his statement, as per Section 9(D) of Central Excise Act, 1944 it is incumbent on the adjudicating authority to cross examine the person whose statement is being relied upon which adjudicating authority failed to do so. Even if the statement is not under duress, threat or coercion but for relying any statement the adjudicating authority must examine the person whose statement was recorded. In the present case, the statement given by Shri. Mahendra Tank was retracted by himself, in the reply to the show cause notice therefore it was very necessary for the adjudicating authority to examine him before relying his statement therefore such statement without following procedure as provided under Section 9(D) cannot be relied upon. Moreover, t....