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TMI Blog2005 (6) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... . Flats are got manufactured on job work basis from one M/s. Supan Steels Pvt. Ltd. by following the procedure under Rule 57F(2). Appellants factory was searched by the Central Excise Officers on 28-12-88 and various documents were seized. Investigation were made statements of various persons were recorded and upon conclusion of the investigation, a Show Cause Notice dated 23-6-89 was issued. The notice was adjudicated by the Commissioner vide order dated 15-2-93, against which an appeal was filed before the Tribunal and the Tribunal by is order dated 21-2-2000 remanded to original authority for de novo adjudication with a direction to allow cross examinations of certain witnesses and also to enable the appellants to adduce evidence in support of their contention. 1.3 Pursuant to that, correspondence was exchanged regarding cross examination and vide letter dated 27-1-2004 a list of witnesses to be cross examined was forwarded. However, vide letter dated 23-4-2004, the appellants were directed to appeal for personal hearing along with their witnesses for cross examination. The appellants vide their letter dated 28-4-2004 replied that it was for the Department to produce the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination, in spite of the specific direction given by the Tribunal in the Order dated 21-2-2000 has passed an order not only contrary to remand direction but in violation of natural justice and such an order cannot be upheld. (c) It is a well settled legal position that the testimony of the witness cannot be relied upon in adjudication of the case, if it is not possible to secure their presence, as held by Hon'ble Supreme Court Tribunal in the following judgments : (i) 2000 (117) E.L.T. 538 (S.C.) - Sounds-N-Images v. CC. (ii) 2002 (146) E.L.T. 248 (S.C.) Shalimar Rubber Industries v. CCE, Cochin. (iii) 2001 (128) E.L.T. 428 (Tri.-Del) Merchant Exports (India) Ltd. v. CC, Cochin. (iv) 2001 (131) E.L.T. 568 (Tri-Del) Takshila Spinners v. CCE, Chandigarh. Therefore, we hold that the ld. Commissioner should not have relied upon the oral testimony of witnesses, who were not offered for cross examination. The order contra to the settled law and direction cannot be upheld. (d) In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured by the Appellants and removed for job work under Rule 57F(2) to the factory of M/s. Supan Steel Pvt. Ltd., Halol. All such removals of S.S. Ingots are invariably accompanied by a Challan issued by the appellants under Rule 57F(2). Appellants have prepared a chartwise details of such removals under Rule 57F(2). The only difference between the charts in the Show Cause Notice and the chart furnished by the Appellants in their reply is that the transport document date is different than the date in 57F(2) challan. The 57F(2) challan date is different by one to three days as later than the date appearing on the transport document. Appellants explain the difference could be because of holidays and the delay in sending the truck as the Appellants initially used to send goods through M/s. Sangeeta Roadways, who do not have any truck and who in turn contacted a transporter namely M/s. Thakkar Roadways, operating from Vapi who also do not own any truck but procured truck from others and sent it to the factory of the Appellants. Shri Virjibhai Chandan of M/s. Sangeeta Roadways, Umbergaon in his cross examination held on 4-2-92, stated that when the vehicles reach late he used to prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the diaries were maintained under the instruction of the Appellant's Manager, but the statement of this Manager is not on record. It is stated it was not recorded. There is therefore no corroboration for the entries in the said diary the investigating officers had questioned few of the consignees shown therein no question whatsoever were put to them with reference to this alleged illicit removal entered as made to them on the basis of the entries in Shri Patel's diary and statement. e.g. statement of Shri Dilipbhai K. Shah of M/s. Patel Metal Rolling Mills. Though statement was recorded, but no questions were put to him as to whether he had received the goods as shown entered in the diary. Therefore, merely on the basis of statement of the alleged author, without any corroborative evidence and when the said witness has not attended the summons for cross examination, nor was called in de novo proceedings, would render the order to be considered to have been passed without proper and impartial appreciation of evidence and demand in this Group II therefore cannot be sustained. (c)(i) The demand under this Group III is based on 'transport documents' and on the basis of statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chit/memos issued by M/s. Thakkar Roadways, Vapi to M/s. Sangita Roadways, Umargaon. The ld. Commissioner refers to the statement of Shri Rameshbhai Jayantibhai Thakkar, Prop. of M/s. Thakkar Roadways, Vapi and statement of Shri Virjibhai D. Chandan, Prop. of M/s. Sangita Roadways. We have perused some of the chits and the description in the chits is as under : "Umbergaon to Jalgaon - M.S. Patta 10 tons. Umbergaon to Ahmedabad - M.S. Patta Umbergaon to Vatva Vapi to Sihore - Steel Scrap Vapi to Bhavnagar - Ingots." (ii) This perusal indicates that the Appellants name is nowhere to be found in the documents. Further, the appellants even did not manufacture M.S. Patta as they manufactured only S.S. Flat. Further during the cross examination of Shri Rameshbhai Thakkar of M/s. Thakkar Roadways and Shri Virjibhai D. Chandan, Prop. of M/s. Sangita Roadways, they have stated that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muradali D. Khoja of M/s. Sunny Transport Company, wherein he has stated that all the consignments were actually lifted by him for Ahmedabad from the Appellant's factory. However, during his cross examination held on 4-2-92, he has confirmed that he has lifted goods from the parties mentioned as consignors in the documents. He also relied upon statement of Shri Vijay Kapdi, Partner of M/s. Jalaram Transport Co., who was not offered for cross-examination. The ld. Commissioner also referred to the statement of the recipients viz M/s. V.R. Enterprise, Vatva, M/s. Guru Rajendra Rolling Mills, Odhav, etc. However, we find from their statements of these consignees that they received the goods under the challans of their Bombay officer and G.C. Notes/L.Rs of the transport company to convert the goods in S.S. Pattas on job work basis. These persons have never admitted that the goods have been received from the appellants, though no investigation was carried out at consignor's end to find out the origin of the goods. All these consignors were having regular business transactions with the Appellants as is evident from the invoices sized by the officers from the appellants' Bombay offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence brought in the Show Cause Notice that the seized goods were out of any unaccounted raw materials procured by the appellants which were not entered in their raw material register. The appellants had explained that the seized goods were required to undergo further processes like N-cutting, grinding, polishing and laboratory testing. The appellants have rightly relied upon the decision of this Tribunal 1994 (69) E.L.T. 300 (Tri.) in V.K. Thampy v. CCE, Kochi. (b) In the cross examination of Shri R.R. Shukla, Superintendent, who was an investigating officer, to question No. 12 stated that there may be cracks on the surface of S.S. Flat and that no samples were drawn by the Department from the goods and that he has come to the conclusion that the goods were ready for dispatch for marketing on his own. Thus there is no independent evidence to say that the seized goods were ready for dispatch or marketing and therefore confiscation of these goods is not sustainable. (c) When clandestine removal without payment of duty is not being upheld, mere non accountal in RG1 and that also of semifinished/unfinished goods cannot call for conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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