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TMI Blog2018 (8) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... he same has to be considered and the statement without examination cannot be relied. Though it is alleged that appellant manufactured and cleared 156700 Kgs. of yarn in the form of cheese / cone without accounting and removed without payment of duty, no evidence is adduced to establish the purchase of cotton, payment made to suppliers for cotton, transportation, payment of freight, consumption of electricity etc. - when it is alleged that appellant cleared without accounting, the department has equal responsibility to adduce evidence as to the procurement of the raw materials as well as evidence for clandestine manufacture and clearance which is not brought to light, from the records of the case. The statement of Shri Elango, which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h interest for the period 1996 - 97 to 1998 - 97 and also imposed equal penalty under section 11AC of the Act. In appeal, Commissioner (Appeals) upheld the same, against which the appellant filed the present appeal before the Tribunal. The said appeal was earlier disposed by the Tribunal vide Final Order dated 21.11.2016 by dismissing the appeal. The appellant approached the Hon'ble High Court against the said order and vide judgment dated 4.9.2017, the Hon'ble High Court had remanded the matter to the Tribunal. Hence the appellant is once again before the Tribunal. 2. On behalf of the appellant, ld. counsel Shri M.A. Mudiamannan submitted that the only documentary evidence which is relied by the department is the broker commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiles, Palladam, M/s. Arul Jothi Mills, Palladam, M/s. Standard Textiles, Palladam, M/s. Kalpana Agencies, Palladam etc. The statements were recorded by Shri A.K. Hait, Superintendent of Central Excise in Tamil whereas in cross-examination, the said officer admitted that he does not know to read and write Tamil. This would prove that the statements recorded are false and cannot be relied as evidence. Further, in the statement recorded from Elango, there is no signature of the officer. The statement of one Smt. Ramamirthan was in English but in her cross-examination it is brought out that she studied upto 11 th standard in Tamil medium and does not know to read or write English. The ld. counsel argued that at the time of inspection, the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they have purchased cheese yarn from the appellant. The statement of the Managing Director Elango also has categorically stated that they have cleared cotton yarn in the form of cheese yarn without invoices and without payment of duty. The confirmation of duty demand as well as penalties imposed is therefore legal and proper. 4. Heard both sides. 5. As narrated above, the main documentary evidence is the brokers commission file alleged to have been recovered from the factory premises. According to department, the said document contains the details of commission paid to main broker who was dealing with the appellant namely N. Thirumoorthy. In page 100 of the appeal paper book the statement of cross-examination of Shri N. Thirumoorth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uljothi Mills, Standard Texiltes, Shri Raviraj, partner of M/s. Ragurama Traders etc. Without producing these persons for cross-examination, the adjudicating authority has relied on the statements of these persons. The law is settled in this regard that as per section 9B of Central Excise Act, when the appellant has requested for examination/cross-examination, the same has to be considered and the statement without examination cannot be relied. 6. Above all these, though it is alleged that appellant manufactured and cleared 156700 Kgs. of yarn in the form of cheese / cone without accounting and removed without payment of duty, no evidence is adduced to establish the purchase of cotton, payment made to suppliers for cotton, transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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