2022 (1) TMI 1118 - AT - Central Excise

Clandestine manufacture - tobacco snuff - goods declared as Mehandi under fictitious name of buyers and sellers - it was alleged that the appellant is procuring the tobacco by using name of Roshan Lal Pawan Kumar without payment of duty which was used in the manufacture of snuff which was ultimately cleared without payment of duty - demand based on statement of various persons - retraction of statements - corroborative evidences or not - denial of cross examination - violation of principles of natural justice - HELD THAT - As per the observations made in the impugned order, wherein it has been held that the allegation of receipt of raw material of tobacco in the manner and denied cross examination of other persons clearly indicated the whole case is made out on the basis of statement of Sh. Roshan Lal and Sh. Pawan Kumar. Further, the cross examination of Sh. Pawan Kumar was concluded by the adjudicating authority holding that the examinationin- chief has been conducted in the presence of Shri Vikash Grover and no further cross examination was warranted as the position will not be going to change even if the appellant would not have conducted the cross examination of Sh. Pawan Kumar which clearly violats the principle of natural justice by denying the cross examination of Sh. Pawan Kumar. During cross examination of Shri Roshan Lal, Sh. Roshan Lal has retracted his own statement and the Revenue has relied on cross examination. In the statement, during investigation, Shri Roshan Lal stated that they were not procuring any goods and the goods were procured by the appellant whereas during the cross examination, he stated that they were engaged in the purchase and sale of raw tobacco. He also admitted that he is not the authorized person to give statement on behalf of M/s Roshan Lal Pawan Kumar whereas Shri Pawan Kumar in his statement stated that his father is correct - The entire case is based on the statement of Sh. Roshan Lal and Sh. Pawan Kumar against the appellant. As there are lot of contradiction in the statement and cross examination of Shri Roshan Lal, therefore, the statement of Shri Roshan Lal cannot be relied upon to allege that the appellant was receiving the goods through M/s Roshan Lal Pawan Kumar directly through suppliers. It is found that to manufacture snuff of huge quantity, other raw material/packing material also required but no such evidence of procurement of other raw material/packing material on record. Without evidence on record from where quantity of other raw material/packing material has been procured by the appellant used in manufacture of snuff which has been cleared without payment of duty, the charge of clandestine removal of snuff against the appellant is not sustainable. Thus, the entire proceeding was based on the statement of Shri Roshan Lal and which is without any cogent evidence on record. Therefore, the charge of clandestine removal of goods on this ground is not sustainable - appeal allowed - decided in favor of appellant.

Issues Involved:

1. Abatement of appeal due to the death of an appellant.
2. Allegations of clandestine manufacture and clearance of tobacco snuff without payment of duty.
3. Denial of cross-examination of key witnesses.
4. Violation of principles of natural justice.
5. Reliability of statements made by witnesses and their retractions.
6. Lack of evidence regarding procurement of raw materials and transportation of goods.
7. Basis of the entire case on assumptions and presumptions.

Detailed Analysis:

1. Abatement of Appeal Due to Death of an Appellant:

The appeal of one appellant, Shri Harish Kumar Sachdeva, abated due to his death on 18.4.2021, as evidenced by his death certificate filed on record.

2. Allegations of Clandestine Manufacture and Clearance of Tobacco Snuff:

The Directorate General of Central Excise Intelligence (DGCEI) gathered intelligence that M/s. Lachman Das Amar Nath (LDAN) was clandestinely manufacturing tobacco snuff without paying duty. The intelligence indicated that LDAN was clearing goods through railways under the guise of "Mehandi" using fictitious names for buyers and sellers. It was further alleged that LDAN procured tobacco through M/s. Roshan Lal Pawan Kumar, which was unloaded directly at LDAN's factory and used to manufacture snuff sold without payment of duty. Based on these allegations, a show cause notice was issued for confiscation of goods, demand of duty, and imposition of penalties.

3. Denial of Cross-Examination of Key Witnesses:

The appellants argued that the adjudicating authority violated the principles of natural justice by denying the cross-examination of several key witnesses, including Sh. Roshan Lal and Sh. Pawan Kumar. The Tribunal had earlier remanded the matter for fresh adjudication with specific directions for cross-examination. However, the adjudicating authority only allowed cross-examination of Sh. Roshan Lal and Sh. Pawan Kumar, denying the same for other witnesses, which was contested by the appellants.

4. Violation of Principles of Natural Justice:

The appellants contended that the adjudicating authority violated natural justice principles by not allowing cross-examination of Sh. Pawan Kumar despite specific directions from the Tribunal. The cross-examination of Sh. Pawan Kumar was scheduled multiple times, but he did not appear due to illness. When he finally appeared, the appellants' counsel was unavailable due to a family emergency, yet the adjudicating authority proceeded without further opportunity for cross-examination.

5. Reliability of Statements Made by Witnesses and Their Retractions:

Sh. Roshan Lal retracted his statements during cross-examination, claiming they were made under coercion. He also stated he was not authorized to make statements on behalf of the firm. The appellants argued that the statements of Sh. Roshan Lal and Sh. Pawan Kumar, which were the basis of the allegations, were unreliable due to these contradictions and retractions.

6. Lack of Evidence Regarding Procurement of Raw Materials and Transportation of Goods:

The appellants argued that there was no evidence of procurement of other raw materials required for manufacturing snuff or transportation of finished goods to their factory. The case was built on assumptions and presumptions without concrete evidence of raw material procurement or finished goods transportation.

7. Basis of the Entire Case on Assumptions and Presumptions:

The Tribunal found that the entire case was based on the statements of Sh. Roshan Lal and Sh. Pawan Kumar, which were contradictory and lacked corroborative evidence. The Tribunal noted that no evidence was presented regarding the procurement of other raw materials or packing materials required for manufacturing snuff, making the charge of clandestine removal unsustainable.

Conclusion:

The Tribunal concluded that the adjudicating authority violated the principles of natural justice by denying the cross-examination of key witnesses. The statements relied upon were contradictory and lacked corroborative evidence. Therefore, the charge of clandestine removal of goods was not sustainable. The impugned order was set aside, and the appeals were allowed with consequential relief.

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