TaxTMI 
TaxTMI 
2022 (3) TMI 936
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....ti was found 54.570 MT as verified by shri Amrishbhai N. Patel as compared to recorded stock of 57.845 MT in RG-1 register. Thus, shortage found was 3.275 MT valued at Rs. 2,29,250/-, involving duty of Rs. 23,613/-. The inquiry was extended to transporter M/s Alpesh Roadways on 09.02.2011 during which certain other LRs were allegedly recovered. The said Transporter allegedly admitted that they had received finished goods without cover of invoices or challans. It is alleged that the main appellant had sold non duty paid goods to the appellant M/s Raghuvir Metal Industries and M/s Shri Ram Sales Corporation and accordingly, inquiry was extended at the end of said buyers at Rajkot and statement of the concerned transporters and buyers were also recorded to substantiate the charges of clandestine removal by the appellant M/s Sarvottam Steel Industries involving evasion of central excise duty of Rs. 13,53,968/-. Appellant Sarvottam Steel Industries had deposited Rs. 12,92,227/- on different dates towards duty during the proceedings. On completing investigation, show cause notice F.No. MP/PI-II/INQ-16/2010-11 dated 03.08.2011 was issued to the appellants for demand of central excise duty....
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....s have defended case against them mainly on the following submissions :- a) There was no clandestine manufacture and removal of goods, as alleged. b) There was no shortage of finished goods as shown in Panchnama dt. 08.02.2011. c) Relied upon documents for demand not provided, despite writtenrequests. d) During adjudication in Remand cross-examination not allowed in terms of Section 9D of the Central Excise Act 1944, despite such direction from Commissioner(Appeals). e) Revenue has not discharged their heavy burden to prove their case. f) Both the authorities have not carried out fact findings correctly. Hence, this Tribunal being final fact finding authority may decide the case finally in this Hon'ble Tribunal. 2.1 Shri P.P. Jadeja has relied upon the following case laws :- A-For not allowing Cross Examination :- * Andaman Timbers v. CCE - 2015 (324)ELT-641(SC) * Basudev Garg v. CC - 2013(294)ELT-353(Delhi) * 2017 (345) E.L.T. 520 (Guj.) -CCE, Ahmedabad-II vs GUJARAT CYPROMET LTD * 2018 (362) E.L.T. 94 (Guj.) - BALAJI ENTERPRISE vs UOI B-For shortage of goods :- * CCE v/s Shri Badrinarayan Alloys & Steels Ltd -2018 (8) GSTL 79 (T-Kol) C-For third party Evi....
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....a Vs. Union of India * 2015 (328) ELT 609 (Tri-Mum) - Saccha Saudha Pedhi Vs. CC (Import), Mumbai * 2014 (309) ELT 671 (Ker) - K P Abdul Majeed Vs. CC, Cochin * 2005 (189) ELT 111 (Tri-Chennai) - Singam Mark &Co Vs. CCE, Saleem * 2017 (313) ELT 113 (Tri-Bang) - National Boards Vs. CCE, Cali cut * 2011 (269) ELT 485 (AP) - Shalini Steels Pvt Ltd Vs. CCE, Hyderabad * 2017 (347) ELT 413 (Bom) - Sharad Ramdas Sangle Vs. CCE, Aurangabad 4. Heard both the sides and perused the records. I find that Appellant's Factory was searched on 08.02.2011. Excise Duty demand of Rs. 23,613/- only is on shortage of 3.275 M/T of finished goods SS Patta Patti found at the time of search as compared to the recorded stock in daily stock account RG-1 and it has been concluded in O-I-O/O-I-A that the said quantity of 3.275 M/T valued at Rs. 2,29,250/- attracting Excise duty of Rs. 23,613/- was removed clandestinely by the Appellant M/s Sarvottam Steel Industries. Other demands worked out are totally of Rs. 13,30,355/- on the basis of LRs of M/s Alpesh Roadways, found from Factory of Appellant M/s Sarvottam Steel Industries, and from offices of of M/s Alpesh Roadways, [Transporter] at Ahmedabad ....
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....Natural Justice. Except these statements of witnesses and co-noticee, there is nothing on record to establish clandestine manufacture or removal of finished goods from the Factory of Sarvottam Steel Industries. Thus, when in remand Adjudicating Authority has neither provided all documents sought by Appellants nor allowed cross examination of any of the witnesses, then, all such statements and documents need not be considered as valid evidences and consequently, duty demands based thereon deserves to be dropped in the facts of this case. I find force in submissions of Appellants on this point considering ratio of the following decisions relied upon by the Appellants for not allowing Cross Examination. * Andaman Timbers v. CCE - 2015 (324)ELT-641(SC) * Basudev Garg v. CC - 2013(294)ELT-353(Delhi) * 2017 (345) E.L.T. 520 (Guj.) -CCE, Ahmedabad-II vs GUJARAT CYPROMET LTD * 2018 (362) E.L.T. 94 (Guj.) - BALAJI ENTERPRISE vs UOI 4.2 The other demand is on shortage of 3.275 M/T and it has been concluded by the adjudicating authority and Commissioner(Appeals) that said quantity 3.275 M/T valued at Rs. 2,29,250/- involving Central Excise duty of Rs. 23,613/- was removed clandestine....
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.... have been vitiated in facts of this case. In the second round of litigation, the Commissioner(Appeals) has also brushed aside submissions of Appellant by only general findings. Thus, both lower Authorities could have finally decided case appropriately as fact finding authorities on ascertaining facts and circumstances of case and appreciation of evidences on critical analysis of records correctly in order to come to rational inference and conclusion whether Appellants had indulged in alleged clandestine manufacture and/or clandestine removal of finished goods, as alleged. Submissions on behalf of Revenue reiterating findings in impugned orders does not support case of Revenue on judicial discipline of not allowing cross examination of any witness despite directions by Commissioner(Appeals) in his O-I-A No. 92 to 95/2012(Ahd-I)CE/AK/Commr(A)/Ahd dated 18-10-2012 in first round. It is quite possible that even after allowing cross examination all these witnesses in remand proceedings, as directed, Adjudicating authority was also free to take the same final decision of confirming duty and imposing penalty, but, by not allowing cross examination of any witness under unjustified and unw....