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TMI Blog2012 (8) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... acture and clear the inputs on payment of duty and the goods have been transported through road to the factory, than the only evidence available with the department is the statements of the brokers who are third party and they need to be examined or cross-examined for testing the veracity of the statements. Accordingly, impugned order is set aside and matter remanded back to the adjudicating authority to reconsider the issue afresh and also producing the four brokers for cross-examination. - E/97 & 189 of 2011 - - - Dated:- 27-7-2012 - Mr. M.V. Ravindran, J. For Appellant : Shri B.V. Joshi, AR Shri V.S. Sejpal, Advocate For Respondent : Shri V.S. Sejpal, Advocate Shri B.V. Joshi, AR Per : Mr. M.V. Ravindran; Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty as penalty under Section 11AC and dropping of penalty on the proprietor of the firm. 5. Heard both sides and perused the record. 6. The main argument of the learned Counsel in this case is that the entire case of the Revenue is based upon the statements of four brokers i.e. Shri Ashok Bandmal Bafna, Shri Arvind Ghewarchad Jain, Shri Ratan Lal Dugar, Shri Bharat Jain. It is his submission that these four brokers were not issued any show cause notice for imposition of penalty under Rule 26 nor they were made an accused in any proceedings. It is his submission that the appellant had produced various evidences as regards receipt of the goods in their factory premises, in form of filing the report as regards non existence of record o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE Ahmd. 2007 (215) ELT 234 (Tri. Ahmd.), Navneet Agarwal 2012 (276) ELT 515 (Tri. Ahmd.) and Vinod Kumar Gupta 2010 (252) ELT 157 (Tri. Del.), for the proposition that penalty should also be imposed on the Director/ Proprietor even if penalties on the firm or Company has been imposed. 10. On careful consideration of the submissions made by both sides, I find that the issue of names given by the appellant as regards non granting of cross-examination, has been addressed by the adjudicating authority in his order in original, as under:- 57. I have carefully gone though the roles played by these persons in this case and I find that the persons appearing at serial No. 1 to 4 herein above are the persons who in one or other way helped th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been sought for, are co-accused and their statements are not held to be false, is incorrect, as the show cause notice which has been issued to the assessee does not indicate that these persons have been issued show cause notice for imposition of penalty under Rule 26 of the Central Excise Rules, 2002, nor there is anything on record to show that these persons were co-accused. Be that as it may, I find that, if these four brokers are considered as co-accused, in fact, their statements should have been tested before the adjudicating authority for the truthfulness of the same, and cannot be considered on the face of it. This point of violation of natural justice was raised by the appellant before the first appellate authority and first appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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