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TMI Blog2015 (10) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... h deposit, subject to such conditions as may be deemed fit to safe guard the interest of revenue. - no incriminating documents have been recovered from the appellants. Some information from pen drive indicating clandestine purchase of inputs and sale of outputs was recovered from one Rutuja Ispat (P) Ltd. (RIPL). The whole case of the Revenue is prima facie based on the statements of Directors and employees of RIPL. On the basis of statements and recovered data, the Directors of appellants were confronted and they have admitted to some extent. By denial of opportunity to cross-examine, there have been gross violation of the principles of natural justice - there are discrepancies in ascertaining the expected production or output based on plant capacity, as idle time and non working days, have not been considered properly. - no further pre-deposit is required and that the impugned order is fit to be set aside and matter be remanded back to the adjudicating authority for re-adjudication afresh after granting opportunity to cross-examine the witnesses whose statements have been relied upon to make out the allegations against the appellants, and to provide reasonable opportunity of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents retrieved in the custody of RIPL, the demands have been confirmed without granting cross-examination of the directors of RIPL and their employees, whose statements have been relied upon by the adjudicating authority. In these circumstances, the impugned order is in complete violation of the principles of natural justice, hence the same is required to be set aside and the matter be remanded to the adjudicating authority for fresh consideration of the issue after granting cross-examination of the witnesses whose statements have been relied upon by the adjudicating authority. To support this contention, the learned counsel relied on the decision of the Tribunal in the case of PMS International Pvt. Ltd. vs. CCE, Ludhiana reported in 2014 (309) ELT 165 and the decision of the Hon'ble High Court of Delhi in the case of Basudev Garg vs. CC reported in 2013 (294) ELT 353 (Del.). He further submits that during the course of investigation, the appellant has already paid a sum of ₹ 1.2 crores whereas the demand confirmed in the impugned order is ₹ 5,64,93,626/-, which works out around 22% of the total demand, and as per the Finance Act, 2014, the appellant is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority, therefore denial of cross-examination is in violation of the principles of natural justice, as held by this Tribunal in the case of PMS International Put. Ltd. (supra). The impugned order is in violation of th0e principles of natural justice. We have also seen the decision of the Hon'ble High Court of Delhi in the case of Basudev Garg (supra), wherein the Hon'ble High Court has held that statement against the assessee cannot be used without giving them opportunity of cross-examining the deponents. It was also held that cross-examination is valuable right of the accused in quasi judicial proceedings which can have adverse consequences to them. Admittedly, in this case, cross-examination was not granted to the appellants by the adjudicating authority. Therefore, we hold that the impugned order is not sustainable in the eyes of law. Accordingly the same is set aside and the matter is remanded back to the adjudicating authority to adjudicate the matter afresh after granting cross-examination of the witnesses whose statements have been relied upon by the adjudicating authority, to make a case against the appellants, and after affording reasonable opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents have been recorded on various dates over a period of more than one year four months and during the said period, there has been no dispute about the veracity of the statements and the applicant-director has very clearly admitted the duty liability as also the clandestine clearances. In fact they have agreed to pay the duty liability and a part of the duty liability was paid by them on various dates over a period of more than 16 months. 13. In view of the above mentioned facts, the case of the Revenue stands on the details recovered and admitted by the applicants. In fact there is nothing further that is required to be proved by the Revenue. 14. The Hon'ble Supreme Court in the case of CCE, Madras vs. Systems Components Pvt. Ltd. reported in 2004 (165) ELT 136 (SC), has held that it is basic and settled law that what is admitted need not be proved. In the present case the clandestine clearance as also the duty evasion have been admitted by the applicant's director on more than one occasion over a period of more than one year and, therefore, in my view there is nothing further required to be proved by the Revenue. 15. The Hon'ble Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y statement and was not influenced by threat, duress or inducement etc., and is true one' -'Confession when retracted has to be tested under Sections 24 to 30 of Evidence Act - Burden is on the accused to prove that confession was made under threat and only if accused is able to prove that it was not voluntary then onus shifts to prove that it was made voluntary. In the present case, undoubtedly there is no retraction of the statements and it is not a single statement but number of statements over a period of time of 16 months. I have, therefore, no hesitation in holding that the said statements themselves are sufficient to prove the clandestine clearances and duty evasion. 17. Further, I note that the applicants have asked for the cross-examination of Shri Sushil S. Badjate, Shri Shailesh Badjate and four other ex-employees of Rutuja Ispat Pvt. Ltd. I find that Shri Sushil Badjate and Shri Shailesh Badjate themselves are the accused or noticees in the present proceedings and from the order-in-original, it appears that they have not even replied to the show cause notice or participated in the adjudication proceedings and the adjudicating authority has imposed penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap without accounting in the books. 22. In view of the above position, in my view, this is not a case where duty evaded should be waived but is a fit case where the entire duty along with interest should be deposited by the applicants before hearing of the appeals. I, therefore, order that the applicants deposit the entire amount of duty and interest within a period of eight weeks from the date of receipt of this order. On deposit of the same, there would be waiver of penalties imposed. 23. The role of the applicants, Dinesh S. Bharuka and Rajendra S. Bharuka, has been brought out in the investigation as also in their own statements. They were the main beneficiaries for the clandestine clearance of the goods. In view of the said position, both the applicants are required to deposit 50% of the penalty imposed on them. (P K Jain) Member (Technical) 24. In view of the difference of opinion between Member (Judicial) and Member (Technical), the matter may be referred to the Hon'ble President for nominating a Third Member to resolve the difference on the following points:- Keeping in view the reasons stated by Member (Judicial) in paras 7 8 above, whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral and also in the interest of early disposal of the appeals, the Central Government has amended the provisions of Section 35F by Finance Act, 2014, which came into effect from 6.8.2014. The amended Section 35F provides for deposit of 10% of the duty in dispute in case where both the amount of duty and penalty have been disputed in appeal before the Tribunal. 29. I find that out of total duty in dispute of.Rs.5.65 crores, the appellant have already deposited ₹ 1.2 crore approximately, which works out to 22% of the duty in dispute. In view of the legislative intent, I find that amount of pre-deposit already made is sufficient for the purpose of hearing of the appeals on merits. 30. I further find that no incriminating documents have been recovered from the appellants. Some information from pen drive indicating clandestine purchase of inputs and sale of outputs was recovered from one Rutuja Ispat (P) Ltd. (RIPL). The whole case of the Revenue is prima facie based on the statements of Directors and employees of RIPL. On the basis of statements and recovered data, the Directors of appellants were confronted and they have admitted to some extent. 31. I further notice t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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