TaxTMI 
TaxTMI 
2020 (2) TMI 1198
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....ollows. M/s. Vivilon Textiles Ind.Pvt.Ltd. [Appellant in Appeal No.E/89254/2018] is a 100% EOU and was clearing Polyester Texturised Yarn (PTY) against CT-3 certificate issued by M/s. Sunrise Textiles [100% EOU] through M/s. Suhel Roadlines [Appellant in Appeal No.E/89293/2018]. M/s. Sunrise Textiles from time to time, procured CT-3 certificates in favour of M/s. Vivilon Textiles, indicating that they intended to procure duty free Polyster Texturised Yarn (PTY) from Vivilon. Mostly the services of Suhel Roadlines were used for transporting the PTY cleared duty free from the factory premises of Vivilon to the premises of Sunrise Textiles at Malegaon, Nashik. Officers of DGCEI, Mumbai, on the basis of certain information, conducted searches at the premises of Suhel at Bhiwandi on 28.9.2002 in connection with the enquiries concerning some other EOU and during those inquiries it came to notice that although PTY was dispatched through Suhel Roadlines for delivery to Sunrise Textiles, but it was diverted to some other place and did not reach M/s. Sunrise Textiles. As per department this was a case of diversion of goods without discharging the duty. Statement of Riyaz Siddiqui, prop....
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....io, cross examination sought will not serve any purpose when all the facts are accepted by the transporter and other 21 transporters who have further transported the goods from Bhiwandi. Nothing new will emerge in the cross examination when all the facts are accepted and are on record. This case is based on facts and circumstances and the cross examination, cannot change the said facts and circumstances". The Appeals filed by the respective Appellants, mainly on the ground that despite the directions of the Tribunal no opportunity to cross-examination of Riyaz Siddique was granted to them, was dismissed by the learned Commissioner vide common impugned order dated 16.7.2018 while observing that the Adjudicating Authority has provided more than enough opportunity and tried his level best for cross-examination in light of Hon'ble CESTAT order but he cannot hold the proceedings indefinitely and therefore the order passed by the said Adjudicating Authority needs no interference. 5. Learned counsel for the Appellants submits that the penalty imposed on the Appellants solely based on the statement of Mr. Riyaz Siddique, proprietor of M/s. Suhel Roadlines and therefore they asked for the....
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....istence of knowledge or reason to believe that the goods are liable to be confiscated under the Central Excise Act or the Rules therein. As there is no finding in the impugned order to that effect, hence the imposition of penalty on the Appellants under Rule 26 is illegal and improper. Therefore in my view the impugned order did not bring out the existence of required ingredients attracting the provisions of the said rule. Learned counsel also submits that in various decisions, the Tribunal has held that penalty under Rule 26 can be imposed only on individuals and not on companies. I have gone through the decisions cited on behalf of the Appellants and am of the view that since Vivion Textiles and Confidence Export are limited companies, they cannot be penalized under the provisions of Rule 26 ibid which is pari materia to Rule 209A of erstwhile Central Excise Rules, 1944 as held by the Larger Bench of the Tribunal in the matter of Steel Tubes of India Ltd., v. Commissioner of Central Excise, Indore, 2007(217) E.L.T. 506. The said decision very clearly and categorically holds that provisions of Rule 209A which are pari materia to Rule 26 of the Central Excise Rules, 2002 will....
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....Sizziqui has time and again disclosed the facts in his statement therefore cross-examination sought will not serve any purpose and nothing new will emerge in the cross-examination when all the facts are accepted and are on record. If this is the observation of the Adjudicating Authority then one can well imagine how serious were the efforts of the Adjudicating Authority in securing the presence of the said Riyaz Siddiqui for the purpose of cross-examination. This is also apparent from the fact that no summons were issued by the Adjudicating Authority to the said Riyaz Siddiqui and only letters were issued to him. In the matter of Balbir Steel (P) Ltd. vs. CCE, Kanpur; 1999(114) ELT 561 (Tri.), Principal Bench of the Tribunal has held that the duty of Revenue does not end merely by issuing summons to the persons on whose statement it relies, it is the further duty of Revenue to produce them, otherwise the statements given by those persons cannot be relied upon for the purpose of adjudication and therefore principles of natural justice are violated by not producing the said witness for cross-examination to the appellant/applicant. In the instant case none of the lower authorities hav....