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TMI Blog2001 (10) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... rise to these appeals may briefly be stated as under :- The company (Appellant No. 1) was engaged in the manufacture of texturised and drawn twisted polyester yarn. Appellants Nos. (2) and (3) were the Directors while Appellant No. (4) was the Manager of the company at the relevant time. The company allegedly received 3,82,962 Kgs. of polyester yarn (POY) from M/s. HPL Company who clandestinely removed the same from its factory premises without payment of duty, during the period April, 1994 to June, 1995. On receipt of that yarn, the appellants manufactured texturised and drawn/twisted polyester yarn out of that and then clandestinely removed the said yarn without making entry in the statutory record and without paying any excise duty. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the raid on his factory. While elaborating the ground, the Counsel has argued that since Shri B.M. Gupta did not submit himself for cross-examination, his statement could not be used against the appellants, and even otherwise, from his evidence, the receipt of yarn without payment of duty from the Company M/s. HPL during the period in question did not stand proved. Therefore, the impugned order of the Commissioner deserves to be set aside. 4. On the other hand, the learned SDR has simply reiterated the correctness of the impugned order of the Commissioner. 5. We have heard both the sides and gone through the record. 6. The allegations attributed to the appellants in the show cause notice, were that they received 382962 Kgs. of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also conceded in his statement that he did not receive any payment from the appellants for the alleged supply of the polyester yarn without payment of duty to them. He had also not produced any document regarding placement of the order with him by the appellants during the period in question for the supply of polyester yarn. In fact, he has not even in his statement disclosed that any order for supply of the polyester yarn, was ever placed with him by the appellants during the period in question. He even did not submit himself for cross-examination during the adjudication proceedings by the appellants in order to test the veracity of his statement and correctness of the entries allegedly made by him in the documents referred to above wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company M/s. HPL for delivery to the appellants, has been placed on record. The company M/s. HPL must have received some order from the appellants for supply of polyester yarn and the same must have been entered also in the record but no such evidence has been collected and placed on record. 8. Similarly, no evidence has been brought on record to prove the actual receipt of the polyester yarn, allegedly in a clandestine manner by the appellants, from the company M/s. HPL during the period in question. The factory premises of the appellants was also raided on 6-7-95 the date on which the raid was carried out on M/s. HPL, but no polyester yarn as allegedly received by them from the company M/s. HPL without payment of duty, was recovered. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating evidence was found from their factory. All the facts and circumstances detailed above, goes long way to disprove the allegations of clandestine receipt of polyester yarn without duty by them from the company M/s. HPL and then clearances of texturised yarn manufactured out of that yarn, by them without payment of duty, during the period in question. 10. In the face of any tangible evidence which is lacking in this case in view of the facts, circumstances and evidence referred to above, no presumption on the basis of uncorroborated, uncross-examined evidence of B.M. Gupta and the alleged entries made by him in his private diary, loose sheets/charts, packing slips could be drawn about the receipt of the polyester yarn by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gurusamy v. CCE, Madurai [2001 (130) E.L.T. 344 (Tribunal, Chennai)]. The ratio of the law laid down in these cases very aptly applies to the present case. 12. The provisions of Section 11AC of the Act for imposing penalty equal to the amount of duty on the appellants had also been wrongly invoked by the ld. Commissioner. The period involved is from April, 1994 to June, 1995 during which the appellants allegedly evaded the payment of duty, while Section 11AC of the Act came into force on 28-9-96. It is well settled that this section has no retrospective effect. Therefore, the penalty under this Section could not be legally imposed on the appellants and the ld. Commissioner by imposing the penalty has erred in law and his order in that r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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