TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 770
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....it Agarwal) accepted the said shortages and excesses. 3. Subsequently vide their letter dated 21/02/2009 the appellant disputed the difference in the stock of raw material stating that the stock of raw material in the furnace was 80MT instead of 35MT. Again on 08/05/2009, the statement of the Director was recorded where he, inter alia, stated that the raw material viz. M.S. ingots is fed in furnace in two rows. As per requirement, they also arrange the aforesaid two rows of M.S. ingots in two tiers. In case the M.S. ingots is arranged in two tiers, the capacity of furnace is 80MT; whereas in case material is arranged in one tier, the capacity of furnace comes to 35MT. However, he stated that on an average the daily production of their plant is about 30-32 MT. In the statement he also stated that all the activities in their plant i.e. from receipt of the raw material till dispatch of the finished goods to the customer are carried out by him/under his supervision and within his knowledge. As such he is responsible for all the activities being carried out in their plant. Statement dated 29/07/2009, of Shri Arun Agrawal, Director of M/s Raja Ispat Pvt. Ltd. Silpahari, Bilaspur, was al....
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....y, 2009, the officers under panchnama resumed following records- Sl. No. Name of the Record Pages 1. Computerised Stock/Sales/Purchase Statements 01 to 37 2. Daily Production Register 01 to 115 3. Small Note Book 01 to 81 (15 to 45 & 49 to 63 Blank) 4. Dispatch Register 01 to 273 (49 to 269 Blank) 5. Sale Invoices (Triplicate For Assessee/Office Copy) Invoice No.01 dated 02.04.2008 to 196 dated 20.02.2009 8. On scrutiny of the resumed records it was observed from „Daily Production Register‟ that a quantity of 2347.300 MT of MS Ingots were consumed for production of M.S. Rods, during the period from 03rd January, 2009 to 19th February, 2009 and as per the admitted ratio of 1.06 MT of MS Ingots for manufacture of 1.00 MT of M.S. Rods, the average production of M.S. Rods during the period should have been 2214.434 MT as worked out in Annexure-A to the panchnama, by the revenue. A comparison of actual production based on consumption of MS Ingots and production, as recorded in books of accounts during the above period reveals that production quantity of 1496.850 MT has been suppressed and not recorded by the appellant's company in their books, as under: - ....
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....tter of record that the appellant had not requested before the adjudicating authority for allowing cross examination of the witnesses either before submitting reply to the SCN or during the personal hearing. Further, observing that there is no absolute right for cross examination and if sufficient corroborative evidences exist, cross-examination or the statement of the deponent is not necessary. Being aggrieved, the appellants are before this Tribunal. 11. The learned Counsel for the appellant states that the observation of the learned Commissioner (Appeals) that request for cross-examination was not made is erroneous, as the request was made by the appellants in their reply to show cause notice. The denial of cross-examination is against the Principles of Natural Justice and the law settled particularly in the case of Jindal Drugs Pvt. Ltd. reported at 2016 (340) ELT 67 (P & H). 12. As regards the finding that recovery of production register and dispatch register, it was admitted by Mr. Sumit Agarwal- Director in his statement on the date of search and also by Raju Dewangan, Production Supervisor who admitted to have made entries in the register. Subsequent denial is therefore b....
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....he Director. Therefore, the calculation of production and its corroboration with the dispatch register is not tenable and erroneous. Further, entire ingots are not converted into final production and the stock of unprocessed or semi-finished goods was not considered. Further, the so-called production register, appeared to be maintained by some labourer for recording the pieces of final product- M.S. Rods, placed on stand, on the basis of which, the payment of wages was made. Further, considering the average weight of M.S. Rods, as 30Kg per Rod, the figure almost matches with the production of 704.190 MT reported in the books of account. Further, the admission of consumption of 1.06 MT of M.S. Ingots for the production of 1 MT of M.S. Bar, is not admission of clandestine removal. 13. Further, the learned Counsel states that the demand of duty has been erroneously worked out on the basis of Dispatch Register and not on the basis of production register, allegedly recovered from Weigh Bridge Section. Very few transporters were investigated and in none of the case enquiry was made from the consignee, regarding receipt of the goods and their disposal to corroborate allegation of clandes....
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.... provided copy of record maintained by him in support of the contention. The learned Counsel states that the statement recorded from the five transporters, is not reliable, as the statements have not been given freely by them. This is evident from the fact that they replied to the leading and guided questions or queries, without producing any records. They were asked whether they carried the goods from the appellant's unit on specified date and they replied in the affirmative. One of the transporter namely- Pravesh Kumar Chaturvedi declined to have carried the goods and replied that their vehicles carried the goods of M/s Prakash Industries only. Moreover, the transporters were rewarded by not making them co-noticees nor there being any proposal to impose penalty despite their so-called admission of transporting clandestinely the finished goods. The statement of one Driver Shri Shambhu Singh was recorded on 07/09/2009 who submitted some sheets of private freight record, contains only vague entries without any reference to consignor, consignee and the nature of goods transported and therefore, have got no evidentiary value. Further, statements of the transporters in absence of t....
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....r the issue of cross examination is concerned, referring to the findings in the Order-in-Original in para-16.2, it have been recorded that the noticees/appellant in their written submissions have made a specific mention that no opportunity to cross-examine any witness has been provided to them. The adjudicating authority observed- on going through the case records, I find that the noticee/appellant before submission of their written submission has not requested for cross examination of any witness. Also during the course of personal hearing the counsel for the noticee have not sought cross-examination of any witness with specific reasons for seeking cross-examination of such persons. Therefore, in the absence of any specific request being made by the noticee/appellant, I do not find any legitimate ground in their request and hence not allowed to the noticee. It is on record that all the statements recorded under Section 14 of the Act, were given voluntarily and without coercion or duress. The principles of Natural Justice do not require cross-examination of the persons who had given information in his statement before the Central Excise Officers under Section 14 of the Act. If cros....