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TMI Blog2009 (1) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is the second round of litigation. At the first instance after issue of show cause notice Commissioner had passed order on 16-5-2002 whereby he had confirmed the demand for duty with interest, imposed penalties and ordered confiscation etc. On appeal filed by the present appellant, this Tribunal had remanded the case back to the Commissioner with a direction that copies of documents relied upon be served upon the appellants and since the matter is pending for a long time, both sides within a period of 5 months of the receipt of this order. Remand order was issued on 10-1-2005 and present impugned order once again confirmed the demand for duty and interest imposing penalties, confiscated plant and machinery and hence the appeal. 2. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidator and to give notice details are not available, action will have to be taken by concerned Commissioner to inform the liquidator about pendency of the appeal before this Tribunal and also the existence of the adjudication order. Liquidator has to take a decision as to whether he would like to pursue the appeal or not. However, since no one is representing company or liquidator, we leave it open to the liquidator to make an application for stay or/and arrange for represent action before this Tribunal. In any case the concerned Commissioner will have to make a claim before the liquidator for recovery of the arrears and at that time the copy of this order also may be produced. 4. Shri J.C. Patel representing Bee Gee Leasing Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k reports and who prepared delivery challans and Shri R.S. Gupta has stated that these were maintained by his clerk. In the absence of any name of the person who had maintained the same, the genuineness of the documents itself is not acceptable. He also submits that the person was not made available for cross-examination. Further he also submits that prima facie they have strong case and therefore unconditional stay against recovery may be granted. On behalf of the Samarpan Textile, He submitted that factory of the appellants has closed down due to labour problems and the appellants suffered the huge loss and the financial condition is vary precarious and if they are made to deposit the duty amount, it would cause them un-due hardship. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. 20-9-2006 Supdt. Valsad Commissioner Report about pasting of letter PH 26-10-2006. 4. 28-9-2006 Commissioner All parties Sent by RAPD & through AC. Letters by RAPD returned undelivered other letters pasted at factory gate on 4-10-2006 5. 12-10-2006 Supdt. Valsad Commissioner Report about pasting on 4-10-2006 6. 26-10-2006 No one appeared for personal hearing or to take copies 7. 30-10-2006 Commissioner Parties Personal hearing on 29-11-06 & to collect copies by RPAD as well as through Assistant Commissioner undelivered pasted at factory gate on 6-11-06. 8. 21-11-2006 Supdt. Valsad Commissioner Report about Panchnama dated 6-11-06. 9. 5-12-2006 Commissioner Parties Personal hearing on 28-12-2006 RPAD undel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id and relied upon and why no x-exam is required. Further, he has also observed that Shri Yashpal Sharma on behalf of the appellants had clearly mentioned in his acknowledgement that he had received all the records mentioned in annexure to show cause notice. This observation has come from the Commissioner since the appellant had stated that copies of delivery challans had not been given. Through out the process of adjudication it is noticed that Department has made efforts to provide documents and admittedly only covering letter of Shri R.S. Gupta has not been provided and inspite of requiring the Ld. Advocate to explain the adverse effect of this to their defence, no specific submissions were made except stating that without knowing conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he allegation against the M/s. Bee Gee Leasing and M/s. Samarpan is based on daily stock reports received and delivery challans corroborated by transporters. Since all the three units are located in the same compound, the question of supply of evidence in the form of transport vouchers does not arise as regards texturised yarn. Further, there is sufficient evidence in the form of delivery challans and evidence from the transporter to show that twisted yarn was sent from Samarpan Textiles to Subhakti Textiles without payment of duty and without proper accounting. Samarpan Textiles cannot have sent unaccounted twisted yarns unless they received unaccounted Polyester Texturised Yarn from Subh Tex Ltd. Analysis of the evidence shows that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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