2018 (8) TMI 1655

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....s. On verification of records, they recovered 'Brokers Commission File' and also recorded statement of Shri Elango as well as others. On the basis of such broker commission file as well as statement recorded show cause notice was issued to the appellant alleging clandestine clearance of cheese cotton yarn and also for clearance of the said yarn in the guise of hank yarn thus evading payment of central excise duty. After due process of law, the original authority confirmed the demand of Rs. 10,27,983/- along with interest for the period 1996 - 97 to 1998 - 97 and also imposed equal penalty under section 11AC of the Act. In appeal, Commissioner (Appeals) upheld the same, against which the appellant filed the present appeal before the Tribunal....

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....relied by the department is the statement recorded from the Managing Director Shri Elango on 16.11.1998. However, the said person had retracted his statement by sending an affidavit. The department has discarded the retracted statement stating that the same is sent by certificate of posting. When there is no dispute that the retracted statement has been received by the department, the manner of sending the statement is of no consequence. The other statements are of traders and brokers like M/s. Poongothai Textiles, Palladam, M/s. Arul Jothi Mills, Palladam, M/s. Standard Textiles, Palladam, M/s. Kalpana Agencies, Palladam etc. The statements were recorded by Shri A.K. Hait, Superintendent of Central Excise in Tamil whereas in cross-examinat....

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....ce. He prayed to allow the appeal. 3. The ld. AR Shri S. Govindarajan supported the findings in the impugned order. He submitted that the broker commission file was recovered from the premises of the factory in which it was shown the details of commission paid to the broker Shri N. Thirumoorthy. In the said file his name was mentioned as Murthy Vellakoil and therefore it was clear that the said book was maintained by the broker. The statement of the other persons namely traders and agents would reveal that they have purchased cheese yarn from the appellant. The statement of the Managing Director Elango also has categorically stated that they have cleared cotton yarn in the form of cheese yarn without invoices and without payment of duty. T....

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.... placed orders for M/s. Ragurama Traders and did not place orders through M/s. Kalpana Agencies. Further, the statement or the document do not establish that the goods received by Sudha Textiles have any reference to the appellant-company. Merely based on the statement of Shri Visveswar, the demand has been confirmed. Many of the deponents were not produced for cross-examination, even though the appellant had requested for the same. The department did not produce also Shri Selvaraj, partner of M/s. Aruljothi Mills, Standard Texiltes, Shri Raviraj, partner of M/s. Ragurama Traders etc. Without producing these persons for cross-examination, the adjudicating authority has relied on the statements of these persons. The law is settled in this re....