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TMI Blog2005 (2) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... hy. The Revenue conducted investigations on the basis of information received. Investigation revealed that M/s. ASRM received MS ingots from M/s. Elango Industries Ltd. (M/s. EIL), Karaikal. The unaccounted ingots were used for manufacture of finished products which were cleared the same clandestinely. M/s. EIL also had illicitly manufactured and cleared a quantity of 1,526.96 MTs of MS ingots without accounting them in the statutory records. Statements of following persons supported the allegation of the Revenue : (1) G. Odayappan, Managing Partner, M/s. ASRM (2) S.A. Premkumar Director (Technical). M/s. EIL (3) S. Elangovan, Managing Director, M/s. EIL (4) &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from Bank Account No. 5527, 1074 of Karur Vysya Bank in the name of S.A. Premkumar, Director of M/s. EIL, towards part payment for the transactions in unaccounted MS ingots. Show cause notice was also issued to M/s. ASRM demanding duty of Rs. 27,04,018.84 for unaccounted clearances of MS angles and MS bars. Penal proceedings were initiated against all the concerned persons and the case was adjudicated by the Commissioner of Central Excise, Trichy, who in his order dated 28-9-2000 confirmed duty demand also imposed equal amount of penalty under Section 11AC of the Central Excise Act, 1944. Further, interest under Section 11AB was demanded and penalty of Rs. 50,000/- each was imposed on G. Odayappan, Managing Partner, M/s. ASRM, S.A. Premku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any money in the Bank account of Prem Kumar. In the de novo proceedings, the Commissioner held that apart from the evidence of statements, there is no corroborative evidence available for the receipt and clandestine and unaccounted removal of raw materials and finished products. Therefore, he dropped the proceedings. 3. Revenue is aggrieved over the impugned order of the Commissioner. In the grounds of appeal, before the Tribunal, they have taken the following grounds : It is not correct to say that the entire case is based only on statements. Apart from statements, there are other evidence to support the allegation. The raw material supplier, M/s. EIL have admitted clearance of a quantity of 1,526.96 MTs of MS clandestinely. This fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Collector of Customs v. D. Bhoormul reported in 1983 (13) E.L.T. 1546 (S.C.) = AIR 1974 SC 859 held that even with regard to burden in Criminal prosecution, Department is not required to prove its case with mathematical precision to a demonstrable degree and that all that it is required is the establishment of such a degree of probability that a prudent man, on its basis, believe in the existence of the fact in issue. The Commissioner has just accepted the retraction of Sarfudeen Mohammed Nazeer during cross-examination when they stated that they had purchased materials only with bills. Commissioner has relied upon the retractions to the effect that money deposited in the Bank related to construction business. Even in acceptin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were served on them or not and any personal service was made etc. Commissioner should have given opportunity to the investigating agency to counter the contentions put forth by the assessee during adjudication proceedings. 4. Shri C. Mani, learned JDR submitted that in the first adjudication proceedings, the Commissioner has held that charges have been established and in the second proceedings, he has accepted the retractions made by the witnesses. The learned JDR also reiterated the grounds taken in the appeal memo. 5. None appeared for the assessee in spite of notice. 6. We have gone through the rival contention. In any clandestine manufacture and removal to establish several links like source of raw materials, their tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for cross-examination of all the witnesses and come to a conclusion. The fact that many of the witnesses did not turn up for cross-examination cannot be any reason for dropping the proceedings. It is also seen that statements which indicated admission of clandestine manufacture and removal have been retracted after a very long time. The adjudicating authority without critical examination has accepted the retractions. This action does not appear to be correct. Adjudicating authority should have given opportunity to the Revenue to present their case also. This also has not been done. Therefore, without expressing any view on the merits of the case, we are of the considered opinion that the case is required to be remanded to the original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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