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TMI Blog2009 (7) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... f law and facts arises in all these twenty two matters, they were heard together and are being disposed of by this common order. 2. The applicants herein have challenged the three orders dated 25th July, 2008 which were passed by Commissioner of Central Excise, Rohtak, in relation to the period commencing from March, 2002 till June, 2005. In terms of said orders, the parties were directed to pay the duty, interest thereon and also penalty amount as stated in the chart hereinbelow : S. No. Appellant Appeal No. Stay No. Duty (in Rs.) Penalty (in Rs.) 1. Surya Boards Ltd. E/2528/08 E/S/2445/08 62062878 124125756 2. Sh Jitendra Kejriwal E/2204/08 E/S/2176/08 62062878 3. Maghar Singh Timber E/2209/08 E/S/2181/08 7757868 4. DPW, Chandigarh E/2211/08 E/S/2183/08 7757868 5. Agarwal Plywood Hyd E/2206/08 E/S/2178/08 7757868 6. Purva Plylam E/2205/08 E/S/2177/08 7757868 7. DPW New Delhi E/2210/08 E/S/2182/08 7757868 8. DPW Bangalore E/2208/08 E/S/2180/08 7757868 9. PT Trading E/2207/08 E/S/2179/08 7757868 10. Surya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate appearing for the respondent, on the other hand, submitted that, the authority below has taken into consideration the cogent material on record which supports the case put forth by the Department against the applicants. He further submitted that, the data retrieved from the seized lap top, compared with the other documentary evidence collected in the course of investigation, on being correlated, clearly discloses the modus operandi of under-invoicing adopted by the applicants in various transactions and this has been further established by the statements of the persons who have been cross-examined as well as by the statements of other persons also. He further submitted that, the rejection of the request for cross-examination of other persons, whose statements were recorded, will not vitiate the impugned order as those statements have been relied upon merely as additional corroborative piece of evidence and even in the absence of those statements, the other evidence analyzed by the lower authority justifies the findings arrived at in the impugned order. He also submitted that, the multiply of 2.49 has been applied on the basis of the information revealed from the data retrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured and cleared by the applicants during the period from March, 2002 to June, 2005. The product relates to the plywood and block-board manufactured and cleared by the applicants by disclosing only part of the actual consideration in their invoices and thereby evading excise duty to the tune of the amount specified in the impugned order. The case of the Department in that regard is sought to be made good on the basis of documentary evidence seized from the premises of the applicants as well as the data retrieved from the lap top which was also seized from the premises of the applicants, and further sought to be corroborated by the statements of some of the distributors of the product manufactured by the applicants. Considering this material, prima facie, the same discloses, as rightly pointed out by the learned advocate for the respondent, the modus operandi of under-invoicing system in relation to the product manufactured and cleared from the factory premises of the applicants. The analysis of such materials, seized in the course of investigation by the concerned authorities, which is revealed from the impugned order, further discloses the retrieved data from the lap top seized fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the said Rules and sub-section (1) of Section 4 of the said Act. As rightly pointed out by the learned advocate for the respondent, taking into consideration the modus operandi of under-invoicing system adopted by the applicants, failure on the part of the applicants to give any explanation in relation to the data retrieved from the lap top of the applicants and which was seized from the premises of the applicants, in spite of enough opportunities having given in that regard, coupled with the documentary evidence establishing correlation between the entries in the data retrieved from the lap top with the entries in the documentary evidence and further corroborated by the statements of the distributors, amply disclose that the calculations made by the authority in relation to the manufacture and clearance of goods without payment of excise duty as well as the valuation and the duty liability cannot be found fault with. Though, it was strenuously argued on behalf of the applicants that in this regard also there was failure on the part of the authorities to comply with the requirement of affording opportunity to the applicants to cross-examine the deponents would not ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the applicants have not been able to point out any material from the statements of those persons, who were not subjected to cross-examination, having been made sole basis to decide the duty liability of the applicants or any said material being made sole basis to ascertain such liability of the applicants. Being so, it is difficult to accept the contention about the violation of principles of natural justice on that count, at this stage. As regard non-disclosure of the statements of other distributors, which are allegedly favouring the applicants, even though, those statements stated to have been recorded by the Department in the course of the investigation, it is to be noted that those statements have, undisputedly, not been relied upon by the Department in the matter in hand. Besides, in relation to those persons, the applicants themselves had filed affidavits stating that the Department had recorded their statements. In other words, those persons were very well available to the applicants if at all the applicants wanted to examine them in support of their case. What is relevant to be seen is, whether any evidence relevant for the defence of the applicants has been shut out fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the part of the applicants in giving any explanation in relation to such data when the same was retrieved from the lap top which was seized from the premises of the applicants. Undoubtedly, the records disclosed that the seizure was under the seal and there is no allegation of tampering of the seal of the lap top. Being so, the data which was retrieved from the lap top was stored during the time when the lap top was in exclusive possession of the applicants. It was, therefore, necessary for the applicants to come forward with the required explanation in regard to the said data. Being so, merely by contending that the refusal of the cross-examination has resulted in prejudice will be of no help to the applicants at this stage. 15. In fact, all the contentions which were sought to be raised on behalf of the applicants will have to be gone into in detail, on merits, at the time of hearing of the appeals. But mere raising of such points, that itself cannot be a justification for grant of stay of the impugned order. The authority below, on the basis of materials placed before it, has arrived at the findings and those findings are not shown to be perverse or totally contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment and understood the observation by the Apex Court therein, the same rather than lending any assistance to the applicants, supports the case of the respondent. 18. In B.P. Verma's case (supra), the Delhi High Court in para 90 and 93 held that, out of 200 dealers, DRI Officers recorded the statements of 62 dealers and except 5, the other dealers denied the payment of any extra amount to the assessee. In the show cause notice, the Department did not rely upon the statements of all 62 dealers, but relied upon only statements of seven dealers. With reference to the same, it was observed that, "This, in my view, not only violated the legal procedure, but resulted in grave injustice to plaintiff." It was further held in para 93 that, from the perusal of the admitted facts and documents, it is evident that the total number of transactions involving alleged payment of extra money over the invoice price constituted less than 1% of the total sale transactions during the period in question. In other words, in the majority of transactions, dealers paid the price, as indicated in the invoices. Considering these observations by the Delhi High Court, it was sought to be contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejection was on the ground that the document could be disclosed only if it is to be used against the party and not otherwise. All the observations by the Court were in that regard. Being so, once we find that the statements of other distributors were of no relevance in the matter in hand, it can hardly be said that that it has caused prejudice on account of non-production thereof. 20. That Apex Court in K.I. Pavunny's case (supra) held that, the denial of cross-examination of the witness, who was sought to be examined in connection with the relevancy of recovery panchnama to establish the connection of the accused with the goods recovered, just not legal. We fail to understand the relevancy of the said decision in the matter in hand. 21. In the case of Collector of Customs, Madras v. D. Bhoormull, 1983 (13) E.L.T. 1546 (S.C.), the Apex Court has held as under : "One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-"all exactness is a fake". El Dorado of absolute Proof being unatt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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