2017 (9) TMI 690 - AT - Central Excise

Clandestine removal - opportunity to cross-examine - evidences - Held that - the case be decided on the basis of the available evidences without going into the issue of cross-examination of Shri Umesh Modi - Shri Dhiman Partner of the appellant firm in his confessional statement admitted the clandestine removal and also confirmed the transaction recorded in the record of Shri Umesh Modi related to the clandestinely removed goods, they also admitted the payment has been made in cash. The said statement of Shri Dhiman has never been retracted - the goods have been clandestinely cleared by the appellant - appeal dismissed - decided against appellant.

Summary

Issues: Alleged clandestine removal of excisable manufactured goods without payment of duty.

In this case, the appellant was accused of clandestinely removing excisable manufactured goods without paying the duty. The department's case relied on a statement from Shri Umesh Modi, the broker of finished goods, and records recovered from him. Additionally, a statement from Shri Arvind Kumar Dhiman, Partner of the appellant firm, confirmed the clandestine removal and entries in Shri Umesh Modi's records. A show cause notice was issued based on this, leading to an adjudication order upheld by the Commissioner (Appeals). The appellant then appealed to the Tribunal, which remanded the matter for cross-examination of Shri Umesh Modi. Despite ample opportunities given, Shri Umesh Modi failed to appear for cross-examination, resulting in a denovo adjudication order confirming the demand for alleged clandestine removal. The appellant's appeal before the Commissioner (Appeals) was rejected, leading to the current appeal before the Tribunal.

Upon hearing the arguments, the Tribunal noted that Shri Umesh Modi did not appear for cross-examination despite opportunities provided. The adjudicating authority confirmed the demand based on available evidence, including the confessional statement of Shri Dhiman, which was never retracted. Shri Dhiman's statement admitted to clandestine removal and cash payments, corroborating the records from Shri Umesh Modi. Considering these factors, the Tribunal upheld the impugned order, dismissing the appeal. The Tribunal emphasized that the case was decided based on the available evidence without delving into the issue of Shri Umesh Modi's cross-examination, as Shri Dhiman's unretired statement, along with other evidence, established the clandestine clearance by the appellant. The Tribunal's decision was grounded in the evidence presented, leading to the dismissal of the appeal.

This judgment highlights the importance of evidence in cases of alleged clandestine activities and the significance of unretired confessional statements in establishing liability. The Tribunal's decision underscores the need for parties to participate fully in legal proceedings, including cross-examinations, to ensure a fair adjudication process.