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TMI Blog2017 (8) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... merely on the basis of uncorroborated statements. The adjudicating authority has proceeded with a prejudged frame of mind in respect of guilt of the appellant. The adjudicating authority has also not taken into cognizance or appreciated the raison-detre of the Tribunal in their earlier Final Order dated 22.09.2004. In a matter like this, where the entire basis of the allegations against an assessee is only on statements of various persons recorded by the departmental officers, all efforts have to be made by the adjudicating authority to ensure that the veracity of such statements is got tested and in case they have been retracted either by the individual concerned through a letter or in cross examination, absolute reliance on such statements cannot then continue to be made. This is all the more important when the inculpatory admissions initially made at the time of recording statements are not backed up by sufficient documentary or other corroboratory evidence, as it is the case herein. The confirmation of demand of differential duty and other legal consequences that have been confirmed in the impugned order predominantly on the basis of uncorroborated statements, but which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 1944. Penalty of Rs. five lakhs each, under Rule 209A was imposed on Shri P. Dinesh and Shri C. Devaraj. In appeal, the Tribunal, vide Final Order No. 1009 1014/2004 dated 22.09.2004, and set aside the proceedings related to demand of duty of ₹ 41,92,460/- as also set aside the penalties imposed on Shri P. Dinesh and on Shri C. Devaraj, but upheld the proceedings in respect of confiscation of vehicle of M/s. Uttam Roadways and imposition of penalty of ₹ 20,000/- in respect of cotton yarn seized on 2.2.2000. However, in respect of proceedings related to demand of duty of ₹ 23,26,451/- the Tribunal remanded the matter for fresh consideration, after allowing the appellant to cross examine the witnesses named in para-14 of the reply to the SCN. In denovo adjudication cross examination was conducted on 10.01.2007 on S/Shri P. Dinesh, Proprietor of SG, Vijayakumar M. Parikh, Proprietor of M/s. Vijay Yarn Corporation and Siddharth V. Parikh, Proprietor of M/s. Siddharth Yarn Traders. After due process of adjudication, the demand of differential duty of ₹ 23,26,451/- for the period 98-99 was confirmed along with interest thereon. Equal penalty of ₹ 23,26,45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the records. 5.1 At this second round of appeal before this forum, the dispute is now been whittled down to the demand of duty of ₹ 23,26,451/- from the appellant along with interest thereon and imposition of equal penalty under both Rule 173Q and Section 11AC. 5.2 From the facts on record, the demand of differential duty is largely based upon the statement of various persons. In Annexure-F to the SCN dated 25.07.2000, found at page 119 121 of the appeal paper book, out of 44 documents relied upon for framing the allegations, 19 of them pertain to the statements recorded from Shri V. Madhu, Proprietor of the appellant Company, Shri P. Dinesh, Proprietor of SGT SVT, Shri C. Devaraj, Proprietor of SGT and other persons. Further five documents relied upon are those which have been handed over by these persons. Discernably, there is considerable, if not predominant, reliance on the said statements while issuing the SCN. It is also seen that they are hardly any relied upon documents that have been recovered/obtained to corroborate the documents given in those statements. This being so, the Tribunal Final order of 22.09.2004 assumes significance. The Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires to be examined afresh by the Commissioner. In the result, we set aside the demand of duty confirmed in Clause I and the penalty imposed in Clause 4 of the impugned order and allow this appeal by way of remand, directing the adjudicating authority to pass a fresh order after allowing the appellant to cross-examine the witnesses named in para 14 of his reply to the show-cause notice. Needless to say that the appellant shall be given a reasonable opportunity of being heard. 5.3 In response to the above directions of the Tribunal, cross examination was got done of S/Shri P. Dinesh, Proprietor of SGT, SVT, Vijayakumar Parikh, Proprietor of M/s. Vijay Yarn Corporation and Siddharth V. Parikh, Proprietor of M/s. Siddharth Yarn Traders. All these persons have clearly disavowed the demands purportedly made in their earlier statements recorded by the Departmental Officers. However, we are unable to understand why the adjudicating authority has rejected the submissions made by Shri P. Dinesh, during his cross examination as devoid of any merit, only on the ground that it is a belated retraction and that the fresh averments are not supported by any documentary evident. The adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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