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TMI Blog2014 (12) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... r, no statement has been recorded from Shri Manoj Mitulal at all. He was not made available for cross examination also. The whole case depends upon the interpretation of loose sheets and the version of Shri Sohanraj Mehta which was changed several times during the period and unless the cross-examination of the persons was allowed, the appellants could not defend the case properly. What is required to be proved by the department is preponderance of probability and therefore we need to examine whether on the basis of evidence collected and investigations done, a case has been made out against the appellant or not and we are not required to examine what are the omissions in the investigation. We find that in the impugned order there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 57085 cartons of RMD gutkha cleared by the assessee has to be treated as clandestinely removed without payment of duty during the period from July 2007 to February 2008 and held to be liable to confiscation. (ii) Central Excise duty of ₹ 26,57,29,571/- with interest is payable. (iii) A redemption fine of ₹ 2.6 crores in lieu of confiscation has to be paid. (iv) Penalty of ₹ 26,57,29,571/- is payable by DIL. (v) Penalty of ₹ 50 lakh is payable by Shri Rasiklal M. Dhariwal, Chairman of DIL. (vi) Penalty of ₹ 50 lakh is payable by Shri Prakash R. Dhariwal, Managing Director of DIL. (vii) Penalty of ₹ 10 lakh is payable by Shri Sohanraj Mehta, Partner of Mehta Associates, the C F Agent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. However, having regard to the fact that the issue involved is clandestine removal, and in view of the fact that large number of persons are involved and the issue involved is also complicated if the adjudication proceedings to be taken afresh we have to proceed directly without delay, it may be necessary to put the appellants to some terms even if we are remanding the matter. This amount will be indicated at the end of the order. 3.1. The submissions made which have convinced us that the matter has to be remanded are only discussed and other details have been left out. The submissions and the discussions and conclusions are as under: i. The learned counsel for DIL brought a carton and showed us and submitted that if 57085 cartons w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne lakh rupees and on this basis the amounts paid have been calculated. He submitted that the excess payments as per Shri Sohanraj Mehta has been discussed but not a single person to whom Shri Sohanraj Mehta is said to have paid the money have been contacted or statement recorded. Excess payments have been made to some suppliers but suppliers have stated that they had supplied everything on record and received the payments in cheques. In respect of additional payments, no statement has been recorded. Not a single buyers statement has been recorded admitting that he had purchased the appellants products without invoice and by payments in cash. 4. The learned counsel also submitted that during the period, as per the Boards instruction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are not able to agree with the submission that the Revenue should have conducted investigation on the lines suggested by the learned counsel and unless that is done, the clandestine removal cannot be proved yet we find that in this cases there are certain important points have not been discussed and not considered. In our opinion, what is required to be proved by the department is preponderance of probability and therefore we need to examine whether on the basis of evidence collected and investigations done, a case has been made out against the appellant or not and we are not required to examine what are the omissions in the investigation. We find that in the impugned order there is no mention of surprise visits of the officers and the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntification based on loose sheets. No question has been asked and no verification has been conducted as regards the claim of Shri Shri Sohanraj Mehta that he was selling other products also. In our opinion, there is a need for detailed consideration of all evidences gathered; implication thereof and the correct classification on the basis of the evidence is required and this has not been done. We definitely are not saying that the fact that several aspects have not been investigated and therefore no case has been made out. What we say is that there is need for more detailed consideration of the available evidence and there is a need to show that with the available evidence, case has been made out. We also find that appellants had asked for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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