9911796707
TMI Blog2007 (6) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows:- (a) It transpires that the Income Tax Department conducted investigation against the commission agent of appellant firm and recovered certain private records and copies of certain documents, which indicated prima facie suppression of actual transaction value in respect of goods manufactured by the appellant and collection of extra amount. (b) On the basis of intimation received from the income tax department to the central excise department and after further investigation by the Central Excise Department, a show cause notice was issued proposing demand of duty and by an order-in-original dated 25-11-1991 passed by the Commissioner, duty amounting to Rs. 7,36,676/- was demanded from the appellant firm and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es did not have any objection for remand of the matter. In view of the earlier observations in above para we remand the matter to the Collector of Central Excise, Ahmedabad having jurisdiction. We further order that the Collector shall also afford opportunity of cross-examination and also produce original note book for perusal of the appellants. We further order that a personal hearing will be granted to the appellants and the Collector shall readjudicate the matter within 6 months from the date of receipt of this order. 8. The Tribunal thus fixed a time limit of six months for deciding the matter afresh; directed granting of opportunity of cross-examination; and ordered that the original note-book should be made available for perusal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Jaura, for making his presence for cross-examination as desired by the assessee and okeyed by the Hon'ble Tribunal. However, the efforts did not yield in any meaningful conclusion so far. Unfortunately, on completion of investigation, Income Tax Department had handed over the diary of Shri Ashwani Kumar Jaura of M/s. Swaran Jaura, who by that time was well aware of its importance as documentary evidence and hence had destroyed that diary. In reply to summons issued to him, he expressed his inability to come to Ahmedabad on one pretext or other and had also disowned his involvement with the assessee. The Hon'ble Tribunal's order and the indifferent attitude on the part of Income Tax Department had placed the Central Excise Department i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispensing with the same, the photocopy of the diary will form as an evidence. Hence, in my considered view, I am not restrained from deciding the case based on evidences gathered by the Department and submissions made in the case, rather than keeping the case for further period of uncertainty. 19. My primary task is to decide whether the photocopy of diary can be taken as evidence, so far as this case is concerned. I find that the case was in fact made out on the basis of photocopy of the diary as one of the evidence. The authenticity and veracity of entries made therein was never challenged by the assessee, on the contrary it was accepted by the assessee. The photocopy of diary was also made available to the assessee for inspection. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1872 and Central Excise Act, 1944, regarding admissibility of such documents as evidence. 10.1 We are aware that the order of the Tribunal is subject to further appellate remedies. The Tribunal has passed the order of remand with the consent of both sides. If the terms of remand order were considered not legal or proper, it was open to the Commissioner to agitate the matter by filing appeal before the higher appellate forum. Alternatively the Tribunal should have been apprised of the difficulties and modification of the terms ought to have been sought. Commissioner has recorded that the department filed a miscellaneous application after nearly six years in March 98. We have not been shown that any such petition has been filed and if so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not chosen to bring to the notice of the Tribunal the developments and seek appropriate modifications terms of the order from the Tribunal. 10.4 The Commissioner has not made available Shri Swaran Jaura for cross-examination. His conclusion that I firmly believe that cross-examination will not serve any purpose so as to alter the course of case, when all the other evidences clearly establish evasion of duty will amount to sitting in judgment over the decision of the Tribunal which directed such cross-examination. If he was deciding the need for cross-examination in the absence of specific direction was by the Tribunal, he was entitled to his view. Tribunal s specific direction permitting cross-examination should not have been brush ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
