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TMI Blog2017 (11) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... of tobacco. In the facts of the case, there was no corroborative documentary evidence to substantiate such statements and in the absence of these link documents it was not proper to conclude that there was clandestine clearance of goods. The settled legal position for establishing clandestine clearances is that there had to be a strong body of evidence which the Tribunal found was lacking in the present case. The Tribunal found that the evidence of drivers would have been useful in proving a fact of supply of raw tobacco at a particular destination but the revenue had not recorded the statements of any of the drivers of transporters of raw tobacco. On the date of interception of 90 cartons of raw tobacco, immediate verification carried out of the stock in the respondent’s factory did not reveal any shortage or excess and there was no evidence of unaccounted production or clearance - the Tribunal has examined the evidence threadbare and has correctly come to the conclusion that the order of the confiscation of 90 cartons of Jarda and the demand made of Central Excise duty upon the main respondent and imposition of penalty and interest cannot be sustained. Appeal dismissed - d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1. A trial before a Court martial is judicial proceeding. Explanation 2. An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Section 228. Intentional insult or interruption to public servant sitting in judicial proceeding. Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and interest were also proposed to be levied. The Commissioner of Central Excise computed and confirmed the duty demanded on the quantity of Jarda removed clandestinely upto February 1997 at ₹ 3,76,49,018/and imposed an equal amount of penalty under Section 11AC. The seized Jarda in the 90 cartons and the vehicle were also confiscated but were allowed to be released on payment of redemption fine. Personal penalties were also imposed on other persons and the partners and employees of RKPTM. 5. The assessee filed an appeal before the CEGAT, Mumbai contending that they were denied an opportunity of cross examining all the material witnesses and as contended by them in their letter dated 29th May, 2000. The Tribunal remanded the matter with a direction to make genuine efforts to enforce attendance of 14 witnesses for cross examination and provide a reasonable opportunity to the representatives of the appellants to make their submissions on merits before passing any orders. The Commissioner then took up the case for de novo adjudication and summons was issued to the witnesses. Subsequently, the case was transferred to the Nashik Commissionerate on the point of jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this matter was heard, none appeared for the respondents. We have heard Mr. Dwivedi at some length but we are unable to find merit in the Appellants contentions. The impugned order records that the Tribunal had heard both sides in detail and at length and also considered the written submissions filed by both the parties at the time of hearing of the case. The Tribunal observed that the case against the appellant was based on the oral statements of the witnesses concerned including that of the assessee and employees together with the record of supplies of raw tobacco and transporters, the matter essentially involved the appreciation of direct and circumstantial evidence. 9. We have perused the record and we find that the impugned order cannot be faulted. The Tribunal has in paragraph nos.11 to 15 considered the findings of the Commissioner in paragraph nos.169, 173, 199 of the Order in Original dated 16th April, 2004 by which the duties and penalty were confirmed. The Tribunal has observed, in our view justifiably, that the matter essentially involved appreciation of direct and circumstantial evidence. The respondents had contended that RKPTM and partners were manufacturing Jarda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third statement recorded on 20th July, 1998 at Nashik, he stated that 10 trucks were supplied through M/s. Ambika Roadways. During the cross examination, it was revealed that his third statement recorded at Nashik was in English and he do not know what was written. 12. Similarly, cases of discrepancies have been set out in the case of Kantibhai's statement and that of Ravjibhai's statements recorded in Gujarati which were at variance with the subsequent statements recorded in English. So also in the case of Brishkumar Gupta, partner of M/s. Baldeoprasad and Badriprasad, in his first statement recorded on 10th March, 1998 at Farukhabad in Hindi language, he contended that he had sent 26 consignments. In his second statement at Nashik on 24th June, 1998 he stated that he had supplied 35 to 40 trucks whereas during the cross examination on 18th June, 2003 he stated that he had supplied raw tobacco to three firms in Amalner. He had also complained to the police by registered post that he had been detained by the Central Excise Officers for 72 hours continuously and his signature was obtained on the statement at Nashik without his having read and/or being explaining the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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