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TMI Blog2002 (9) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, and imposed penalties on the other appellants as detained in the impugned order itself. 2. The appellants no. 1. M/s. Globe Synthetics Ltd. (in short M/s. GSL ) is a company engaged in the manufacture of polyester yarn (texturised and drawn/twisted). They were served with a show cause notice dated 12-8-1997 alleging that they had manufactured polyester yarn during the period November, 1994 to June, 1995, weighing 4,97,671.746 kgs from the POY, clandestinely received from the company, appellants no. 4 (in short M/s. HPL) and removed the same clandestinely without entering in the statutory records, without issue of invoice and without discharging the duty liability. The penalty was also proposed to be imposed on appellants no. 2 and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period. The impugned order has been based on inadmissible, inaccurate and insufficient testimony of Shri B.M. Gupta, the Vice-President of the company, HPL, from whom one diary and loose sheets were allegedly recovered while taking search of the factory premises of the company, HPL. The learned Counsel has further contended that the evidence of Shri B.M. Gupta, could not be legally used against the appellants as he failed to submit himself for cross-examination and could not disclose the sources from where he made the entries in the diary and the loose sheets, and even there was no corroboration to his evidence from any source also. Therefore, the impugned order deserves to be set aside. 5. On the other hand, the learned SDR, has simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in the Hon ble Punjab and Haryana High Court, confirmed his retraction of the earlier confessional statement having been obtained under duress and coercion. But, thereafter he again changed his stand and stated that his earlier statement was voluntary. He had been, in fact, changing his stand regarding the maintenance of the alleged diary and the loose sheets, from time to time as and when he found convenient. Therefore, he could not be said to be a man of credence. 7. Secondly, Shri B.M. Gupta did not submit himself for cross-examination at all before the adjudicating authority, in order to test the correctness of the entries made by him in the diary and loose sheets, for the reasons best known to him. He even did not disclose any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Shri B.M. Gupta and the alleged entries made by him in his diary and loose sheets, carried no legal value and were, in fact, inadmissible in evidence. The charge of clandestine receipt of POY from the company, HPL, and manufacture of the polyester yarn out of that by the company, GSL, could not be said to had been proved against the said company on the basis of that evidence. In this view, we are fortified by the law laid down in (1) Arsh Casting Pvt. Ltd. v. CCE, 1996, (81) E.L.T. 276 and Takshila Spinners v. CC, Chandigarh, 2001 (131) E.L.T. 568, wherein it has been held that no reliance can be placed on the evidence of a witness who had not turned up for cross-examination during adjudication proceedings, especially when his evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany, GSL. He only deposed that most of the yarn was sold in Surat/Bombay markets. Regarding Bill of Exchange (Hundi), he submitted that he had been approaching various finance companies for short-term loans. Shri Rajeev Agarwal, Joint Managing Director of the Company, HPL, stated that he had been receiving all the reports coordinating the activities of the various sections of the company, but he nowhere admitted the clandestine removal of the goods by his company, HPL to the company, GSL, or clandestine receipt of the goods from GSL by the company HPL. Similarly, Shri Rakesh Gupta, Managing Director of GSL, in his statement nowhere admitted the clandestine receipt of raw material from the company, HPL or clearance of the finished goods b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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