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TMI Blog2007 (8) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... sing penalty of Rs. 5,00,000/- (Rupees Five Lakh only) on him under Rule 209A of Central Excise Rules, 1944 has come in Appeal before this forum. Sri R.N. Awasthi Appellant No. 3 in Appeal Case No. 214/2000 has challenged imposition of penalty of Rs. 25,000/- (Rupees Twenty Five Thousand only) on him by aforesaid common order. Shri S.K. Mohapatra Appellant No. 4 in Appeal Case No. 215/2000 has challenged levy of penalty of Rs. 10,000/- (Rupees Ten Thousand only) being aggrieved by the aforesaid order impugned. 1.2 The charges levelled against Appellant No. 1 in the show cause notice as apparent from page 48 of the Paper Book, were as under :- (i) 16,252.219 MT of Vanaspati was removed by the Appellant in the guise of refined mustard/soya/cotton seed oil without payment of duty amount of Rs. 2,52,44,791 /-(Rupees Two Crore Fifty Two Lakh Forty Four Thousand Seven Hundred and Ninty One only. (ii) Removal of Vanaspati was recorded as refined oil in the GP-1 / Invoice believing that to be false (iii) Production of Vanaspati to the tune of (16,252.365 MT) was suppressed and the same was recorded to be refined oil making false entries in the RG-1 Register (iv) Statutory quart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords were taken by the department to their custody depriving the Appellants from due process of justice from day one of search and debarred them to lead evidence as well as to prepare their case for the period from Aug., 91 to 17-8-95 comprising 5 (five) financial years for which adjudication took 4 years for reasons attributable to the Department and adjudication was completed on 23-12-1999 behind back of the Appellants. The order so passed was communicated to the Appellant on 10-1-2000. The demand was raised arbitrarily and vexatiously. 2.2 He submitted that the order of adjudication although pretends to be elaborate and self speaking that was not real for violation of natural justice. Appellants were deprived of copies of documents used against them demolishing their prayer for issue of such documents and they were denied due process of justice for which the whole assessment was fatal being mere hypothetical. He drew attention to the manner of examination done by the assessing authority submitting that the statement recorded from various persons were used against the Appellants behind their back, without confrontation thereof for rebuttal and copy of a single such document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department prior to search when the impugned period comprised 5 financial years from 1991-92 to 1995-96 and Appellant was an assessee of the Department under close monitoring through gate pass system at the time of removal of goods from factory. The basis how shortage was worked out was not confronted to the Appellant nor the materials cross verified. Alleged discrepancy in figures of inward register, VOP register and VOP return all along -remained in department's custody without being put forwarded for rebuttal. The fictitious and non-existent traders were only whisper by the department without identity made known to Appellants for cross-examination. Excessive use of Catalyst nowhere found its basis in the production of any of the 5 financial years and no evidence were brought to prove that the department's stand was supported by reason. Allegation of suppression of production and clandestine removal were never backed by any cogent evidence to meet tests of law. The destination of suppressed production was not brought to light for rebuttal. Allegation of removal of goods without payment of duty was superfluous when factory of the Appellant 1 was under close supervision by the exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled for specific reply from the Revenue as to whether the Appellant was pro vided necessary documents and evidence to lead their defence. Records Jack to demonstrate that grievous charges levelled against the Appellant have met rigorous tests of law. That led us to infer that justice is not only to be done but seemed to have been done following due process of law. As the Appellants have grievance that plethora of documents were seized by the department and those were inaccessible but were used against them, copies of relevant documents are required to be provided for rebuttal. Since evidence can speak truth, that should see light of the day. Appellants were all along pleading before us that copies of documents were issued in piecemeal before the dates of hearing by Tribunal and the materials gathered from outside agencies as well as from witnesses were never provided to them for leading defence. Cross-examination was denied and the reason stated in the impugned order for such denial did not appeal us. It is needless to state that whenever cross-examination is essential, failure to allow such opportunity, cripples the evidence sought to be used against the accused. 4.2 We are u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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