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TMI Blog2017 (11) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... hul Agarwal, Advocate for Appellant Shri Rajeev Ranjan, Joint Commissioner (AR), for Respondent ORDER Per: Anil Choudhary The present appeal is filed by the appellant-assessee against Order-in-Original No.41/Commr.GZB/2010-11 dated 15/02/2011 passed by Commissioner of Central Excise Customs, Ghaziabad. 2. This is the fourth round of litigation. The issue in this appeal is whether the appellant, in the garb of waste have been clearing the finished products. 3. Vide show cause notice dated 03/07/1978, the case of revenue is that the appellant without payment of appropriate excise duty, in the garb of uncut-crimped waste had removed their finished products being Polyester Fibre/tow, thereby evading a sum of ₹ 1,42,67,764.60/- as duty on a quantity of 4,19,418.00 Kg of tow having been cleared on invalid gate passes in form G.P.-1. It further appeared that the appellant have suppressed production of a quantity of 23464.8 KG of polyester fibre without accounting for the same in the statutory records without getting the classification list approved, without issuing gate passes and without payment of duty amounting to ₹ 84,15,521.12/- leviable the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further penalty was imposed and the land, building, plant and machinery also stood confiscated. Being aggrieved, the appellant preferred appeal before this Tribunal and thereafter this Tribunal by its Final Order dated 15th July, 1992, remanded the matter to the adjudicating authority, for a redetermination after considering fresh submissions to be made by the appellant. However, the Tribunal did not allow the prayer of the appellant for cross-examination. Being aggrieved the appellant preferred further appeal before Hon ble Supreme Court and vide order dated 20/07/2000, the appeal of appellant was allowed in the following terms:- The Tribunal in the present case has remanded the matter to the Collector for a fresh decision after coming to the conclusion that there had been a denial of the principles of natural justice. While remanding the case, the Tribunal, however, upheld the finding of the Collector that the appellant herein will have no right to cross-examine the witnesses on whose statements the Collector had relied upon. 2. The point in issue in the present case was whether a commodity which is categorised as waste by the appellant can be regarded as good quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at para 5.2 wherein on the issue of cross examination, the learned commissioner have observed that the Hon ble Apex Court in appeal filed by the appellant gave the verdict- When the Collector has to decide the case afresh he should, if he intends to rely upon the statement of any such person, give an opportunity of cross examination to the appellant. The learned Commissioner further observed that as such, all efforts were made by sending letters to the witnesses at the available addresses to enable the cross examination requested by the appellant. Further, observed that letters to all the 4 witnesses were sent by registered post, in case of 3 witnesses, namely Surendra Kumar Kalra of Nagda, Narain Bhai Patel of Ahmedabad and Banarasi Lal Luthra of Mumbai, the letters were received back from the postal authorities with the remarks closed , Receiver left , and not known . Further in case of Mr. S.P. Kanoria, his employer M/s Raigarh Jute Textile Mills Ltd . informed that he had left the firm 25 years back and his whereabouts were not known. Further the matter, being 32 years old, they did not have any record pertaining to the said person. Further, as the matter was very old ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 it is observed that I find that the insistence of cross-examination of the persons from ultimate users does not have much relevancy since the witnesses have just accepted that goods were belonging to appellant and received by them through intermediary parties were used as fibre/tow for spinning of yarn. The admission of the facts by the party in their defense reply is itself an evidence for the allegations made in the show cause notice by the Department. It is further recorded that enquiries conducted also revealed that although delivery challans/gate passes issued, showed movement to the middlemen but the material was sent directly to the spinners. Further on cross examination in para-5.9 the learned Commissioner states I find that on 19th February, 2008 at the time of personal hearing before the then Commissioner, appellant requested for cross-examination of 4 persons only, namely, S.K. Kabra of Bharat Commerce Industries, Nagda, Shri N.B. Patel of Sarangpur Cotton Manufacturing Company, Shri S.P. Kanodia of Bharat woollen Mills, Calcutta and B.L. Luthra of Natsyn Fibre Processor. Cross-examination of any other person was never requested by them, thereafter. I thus find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant on record. In this view of the matter the whole period under dispute is barred by limitation. 8. The learned AR for revenue has relied on the impugned order. He further emphasises that the learned Commissioner have categorically stated that he has done all that he could do to ensure the attendance of the witnesses of the revenue but they were not traceable and/or could not be located and as such there have been adequate compliance of the directions to cross examine and passed the fresh order in accordance with law. 9. Having considered the rival contentions and on perusal of record, we are satisfied that the learned Commissioner has failed to present the witnesses of revenue, the statements of which have been relied, for cross-examination. We are further satisfied that learned Commissioner has failed to exercise the jurisdiction vested on him to ensure the attendance of witnesses in the course of adjudication proceedings. We further take notice that under the provisions of law all the powers of a Civil Court are vested in the adjudicating authority in ensuring the attendance of witness, which we find from the findings on record, have not been resorted to. Thus the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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