TaxTMI 
TaxTMI 
2024 (2) TMI 312
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....ction 115(2) of the Customs Act, 1962. Since, the said seized vehicle has already been released to its lawful owner in compliance of O-I-O No. 03/Commissioner/LKO/2013, dated 26-9-2013 in favour of Shri Vijay Shanker Tripathi on deposition of Redemption fine of Rs. 2,00,000/- vide TR-6 challan no. dated 8-10-2013, I order to appropriate the above said amount of Rs. 2,00,000/- to the exchequer in lieu of this confiscation; F.3 I order confiscation of the seized Truck bearing Registration No. UP-78-CN-4811 under Section 115(2) of the Customs Act, 1962. Since, the said seized vehicle has already been released to its lawful owner i.e. Shri Bhola Shanker Pandey, in compliance of O-I-O No. 03/Commissioner/ LKO/2013, dated 26-9-2013 on deposition of Redemption fine of Rs. 2,00,000/- vide TR-6 challan no. dated 8-10-2013, I order to appropriate the above said amount of Rs. 2,00,000/- to the exchequer in lieu of this confiscation; F.4 I impose penalty of Rs. 14,00,000/- (Rs. Fourteen Lakh only) upon Shri Kamlesh Gupta (owner of seized Urad Ki Dal). Since, Shri Kamlesh Gupta has deposited an amount of Rs. 2,00,000/- & Rs. 3,00,000/- (Total Rs. 5,00,000/-) as pre-deposit while f....
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....e Panchnama, the place of seizure has been shown as near Indo-Nepal Border but the trucks were seized from the godown of Shri Kamlesh Gupta. The pulses in question were duly covered with the documents, showing the purchase of the same. To establish that the interception and seizure of the trucks was at the godown premises, cross-examination of the Officers as also other deponent of the statements was requested for. The said prayer stands rejected by the Commissioner by simplicitor observing that such request is irrelevant and cross-examination cannot be allowed on flimsy grounds and in a routine manner. 7. I note that the issue whether cross-examination is required or not, depend on the facts and circumstances of each and every case. If the appellant is disputing the factual positions and if the various deponents' statements have retracted from their earlier statements, such cross-examination is required to test the veracity of their statements as also to establish the factual position. Such cross-examination was necessary, especially in view of the fact that the Adjudicating Authority himself found incorrectness of the statement of Shri Kamlesh Gupta. In fact, I find that t....
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....vide order dated 23-11-2017 allowed the appeal in respect of Shri Rahul Mishra & the remaining three appeals of Shri Kamlesh Gupta, Shri Vijay Shanker Tripathi & Shri Bhola Shanker Pandey were remanded for afresh decision after affording of cross-examination of witnesses as prayed for by the appellants. The said order of Hon'ble CESTAT was accepted by the department. Accordingly, I observe that there are two issues to be decided in the light of order of Hon'ble CESTAT which are stated as under :- * Providing of cross examination of the witnesses to the noticees before issuing afresh order. * The truck owners i.e. Shri Bhola Shanker Pandey (owner veh. No UP 78 CN 4811) & Shri Vijay Shanker Tripathi (owner veh. No. UP 35-H-9829) were given an opportunity for provisional release of their trucks. E.2 Firstly, I am discussing the point where Hon'ble CESTAT in their findings provided the truck owners i.e. Shri Bhola Shanker Pandey (owner veh. No. UP 78 CN 4811) & Shri Vijay Shanker Tripathi (Owner Veh. No. UP 35-H-9829) an opportunity for provisional release of their respective vehicles. In this connection, I find that in compliance to Order-in-Original No. 03/vk;qDr/y[ku&Ar....
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....d vehicles have already been released to their respective owners in compliance of Order-in-Original No. 03/vk;qDr/y[kuÅ/2013, dated 26-9-2013. Therefore, no action is warranted in reference to the findings of Hon'ble CESTAT regarding Provisional release of the said seized vehicles. E.5 Now, I would discuss the main point on the basis of which the instant case was remanded by the Hon'ble CESTAT for de novo adjudication. Hon'ble CESTAT vide it's order dated 23-11-2017 observed that the denial of cross-examination of the witnesses in Order-In-Original was in violation of principles of natural justice and the same shall be provided to the noticees before afresh decision. Therefore, in compliance of the same dates of cross-examination of the witnesses were fixed on 13-8-2018, 31-8-2018 & 18-9-2018. Further, to ensure that letters reached to their actual destination thus ensuring that the directions of the Hon'ble CESTAT regarding cross-examination of the Panch witnesses may be complied with; the letters of communication of the same were not only send to the witnesses on their known available address vide letter dated 2-8-2018, 16-8-2018 & 5-9-2018, but also served through j....
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....18 & 13-9-2018, has submitted that 'they are daily wages laborers and are unable to attend the cross-examination and further reiterated that they are in full agreement with the Panchnama of the instant matter.' 4.4 Further, the Commissioner has observed that the genuineness of the panch witness cannot be questioned as they are duly receiving the letter of the Department but due to his personal economical reasons they are unable to attend the proceeding of cross-examination and they have stated in their response that the confirm the genuineness of Punchnama. In my opinion such confirmation of the punchnama behind the back of the appellant, is not acceptable evidence in law. Cross-examination of witness to the punchnama is not for affirming the punchnama, but is procedure prescribed by law, to establish the genuiness of the document sought to be relied in the proceeding against the appellant. It is by way of cross-examination appellant would have disputed the genuiness of the punchnama and the credibility of witness. 4.5 Further, the Commissioner has concluded to the genuineness of the Punchnama without the cross-examination of panch witnesses who admittedly are daily wag....
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.... case of Bakul Poly Pack Pvt. Ltd. [2018 (363) E.L.T. 376 (Tri. - All.)] Allahabad Bench has held as follows : "4. As per the directions, the Adjudicating Authority issued summons under Section 14 of the Central Excise Act, 1944. Both the Panchas (public witnesses) were summoned to appear in person for hearing on 25th October, 2007, before him and for cross-examination, which were sent to the Panchs at their home address through registered speed post. However, the said summons were received back from the Postal Authority with the remark that the addressee have left the said address, without any whereabouts of the new address. Another attempt was made to deliver the summons through the office of Additional Director General, DGCEI, New Delhi to the said Panchs/witnesses to appear before the Additional Commissioner on 25-10-2007 for the examination/cross-examination. However, the Deputy Commissioner, DGCEI also returned the said summons in original stating therein that the said panch witnesses were not available at the given addresses and their new addresses are not known to the present resident of the said premises. Accordingly, the summons could not be served. Thereafter, dat....
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....e, who is bound to produce cogent and tangible evidence in support of its case. The Department relied upon the Panchnama dated 20-10-2003 which is highly questionable document and the case is not proved beyond doubt. Further, the Adjudicating Authority have violated the Principles of Natural Justice and has failed to give effect to the orders of the Commissioner (Appeals), wherein the Learned Commissioner (Appeals) had remanded the matter with the clear direction to extend opportunity of cross-examination of the Panch witnesses, which was not complied by the Adjudicating Authority. Thus, the entire Panchnama proceedings are infructuous and in fact void ab initio. They, further held that the Adjudicating Authority should have appreciated that Section 18 of the Central Excise Act, 1944 which makes specific provisions with regard to the searches made under the Act, which has to be carried out in accordance with the Criminal Procedure Code, 1998. There is no room for resumption and presumption in cases of alleged clandestine removal; the standard of proof in cases of clandestine removal is proved beyond doubt and not that of the preponderance of probabilities and positive evidence is n....
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....ve been returned by the Postal Department with the remark left without address. In the circumstances, it is decided to dispose of these appeals, ex parte. 9. Having considered rival contentions, and after going through the records, I find that the Ld. Commissioner (Appeals) have rightly held that there has been failure on the part of the Additional Commissioner to comply with the directions given by the Ld. Commissioner (Appeals) in the earlier ground of litigation. I also find that Revenue have not been able to controvert that the witnesses were not the persons brought along with the search team. Under the provisions of the Criminal Procedure Code, such witnesses have to be persons of repute staying in the near vicinity or the locality where the search or seizure takes place. Such provisions have been admittedly not followed. Accordingly, I hold that the proceedings are vitiated and the adverse conclusions drawn by the Additional Commissioner have been rightly held to be unsustainable by the Ld. Commissioner (Appeals)." 4.7 Chandigarh Bench has in case of Dirba Pipes Pvt. Ltd. [2017 (347) E.L.T. 529 (Tri. - Chan.)] observed as follows : "15. As observed by the ....