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TMI Blog2020 (3) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... t result in his favour - In light of the observations by CESTAT, the question as to whether the searches conducted on 8th November 2011 are illegal is purely a question of fact which has been sufficiently dealt with by the CESTAT. Thus the consequent question of whether the documents recovered during the searches can be relied upon to come to a conclusion, does not present itself. In the matter of RELIANCE CABLE INDUSTRIES VERSUS COMMISSIONER OF GST (EAST) DELHI [ 2018 (11) TMI 1147 - DELHI HIGH COURT] which arises from the search and seizure conducted concurrently with search and seizure on premises of the Appellant therein, this court dismissed the Appeal filed, noting that the question of law raised by the Appellant were purely factual and no interreference was merited by this court. Appeal dismissed - decided against appellant. - CEAC 19/2019 - - - Dated:- 28-1-2020 - CHIEF JUSTICE MR. C.HARI SHANKAR J. Petitioner Through: Mr. Vakul Vardhan Gautam and Ms. Vijay Lakshmi, Advs. Respondent Through: Mr. Amit Bansal, SSC with Mr. Aman Rewaria and Ms. Vipasha Mishra, Advs. JUDGEMENT D.N. PATEL, CHIEF JUSTICE (ORAL) CEAC No. 19/2019 1. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of equal amount against the Appellant, in the impugned Order-in-Original dated 31.03.2017, which was fraudulently placed in the impugned Show-Cause-Notice by the revenue, as what was shown to the Appellant at the time of recording his statement on 14.11.2011 was a different chart containing 7 to 8 columns, which is evident from: (a) The contents of impugned Show-Cause-Notice placed at page Nos.527 of the paper-book of the instant appeal; (b) Statement dated 14.11.2011 of the proprietor of the Appellant recorded by Shri Rajbir Singh, Superintendent of Central Excise, placed in the paper-book of the instant appeal; (c) Record of cross examination of Superintendent of Central Excise Shri Rajbir Singli Gahlot (who recorded the statement of Proprietor of the Appellant on 14.11.2011) dated 31.01.2017 before the Ld. Respondent placed in the instant appeal; (d) The statement dated 14.11.2011 of the proprietor of the Appellant, which reveals that all the pages of, 7 to 8 columns chart, were signed by the proprietor of the Appellant after recording the statement during the course of investigation, whereas what has been relied in the impugned Show-Cause Notice as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2017, that if department officers and Panch witnesses does not turn on the next date, the evidences given by them, will be stuck off the record? 4. At this juncture a brief narration of facts is necessary. Factual matrix 5. The Appellant Firm is a sole proprietorship, situated at CN.841 (25/25), Gali No. 16, Vishwas Nagar, Shahdara, Delhi-32, wherein Shri Naresh Kumar is the sole proprietor of the firm. The Appellant firm is engaged in the manufacturing of Bare Copper Wire by reducing the thickness of copper wire/rods and coating the bare copper wire with chemical, viz., Cu-56 and rolling or reeling them. 6. On 8th November 2011, on receipt of intelligence that the Appellant firm was engaged in the clandestine removal of bare copper wire to M/s. Reliance Cable Industries, 519/1, Plot No.33, Sansar Compound, GT Road, Shahdara, New Delhi and others, without payment of Central Excise duty, pursuant to a search warrant issued by the Additional Commissioner (Anti-Evasion), Central Excise, Delhi-II, a search on the factory and residential premises of the Appellant firm and its proprietor respectively was conducted by the officers of Central Excise, Anti-Evasion Branc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansport was rejected by the Commissioner, Central Excise, Delhi-II on 15th October 2014. 14. The Appellant, thereafter, filed Writ Petition No. 854/2014 in the High Court of Delhi which was disposed of on 15th February 2016 wherein the Appellant was directed to file its final reply to the Show Cause Notice within a period of four weeks of the passing of the Order and in any event not later than 14th March 2016. Moreover, the Appellant was directed to file the list of witnesses it seeks to cross-examine, upon which the adjudicating authority would consider the request and as per law fix a time bound schedule for cross examination. 15. Pursuant to the aforementioned order, the Appellant filed the written reply on 14th March 2016. Moreover, based on the directions passed, the Commissioner fixed cross examination of four panchnama witnesses, departmental officers and Mr. Ashok Aggarwal, Surya Transport on 05th December 2016. Since some of the panch witnesses and departmental officers failed to turn up on the days on which the cross examination was fixed, the Commissioner gave the last opportunity to departmental officers and panch witnesses on 11th January 2017 failing which thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissions with only minor retractions. Moreover, it is pertinent to note that in the statement dated 8th November 2011, the Appellant has also admitted that the search was conducted in his presence and in the presence of the Pancha witnesses. I 20. Paragraphs 7 and 8 of the judgement of the CESTAT merits reproduction, as under, 7. After hearing both the parties and perusing the entire record, we are of the opinion as follows:- From the panchnama dated 08.08.2011 as prepared during the search of the factory as well as residential premises of the present Appellant, it appears that the various records in the form of loose kacha parchi, gutkas, books etc. were recovered. Admittedly, all these documents were showing clearance of bare copper wire. The plea of proprietor of Appellant as apparent from his statement that due to stiff market competition pucca record/invoices were not raised is not at all sustainable. The persons whose names were shown in the said recovered record were also being investigated. All of them including M/s Reliance Cable Industries acknowledged receiving the bare copper wire from the Appellants that too on kacchi parchies. It is also an admission as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of the Appellant Firm and the corroboration of the clandestine removal of goods with the records of M/s Reliance Cable Industries, transportation firm M/s Surya Transport and statements and admissions of the proprietor of Reliance Cable Industries wherein the fact of purchase of unaccounted goods from the Appellant had been admitted. 22. Moreover, on the plea of the Appellant that Commissioner had declined the opportunity to cross examine witnesses, the CESTAT noted that numerous opportunities were given to the witnesses to present themselves for cross examination and letters were issued for the same and on nonappearance, the Counsel for the Appellant had himself agreed to proceed without the cross examination, thus, it is not a case of rejection of the opportunity to cross examine. Paragraph 9 of the judgement of the CESTAT merits reproduction, as under: 9. As far as the plea about no opportunity for cross examination of the witnesses as have been relied upon by the Department for confirming the impugned demand against the Appellant, it is observed from the record that the Appellant requested for the cross examination of three panch witnesses only. The Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner showing the clandestine removal of the goods since the charts shown to the Appellant during the recording of the Section 14 statements were allegedly different from the ones relied upon in the Show Cause Notice. Moreover, it was contended that the statements and evidence recovered at the third party M/s Reliance Cable Industries should not have been relied upon since the Appellant had not been confronted with the same at the time of investigation and recording of the statements under Section 14 of the Act. Consequently, it was contended that CESTAT confirmed the demand against the Appellant based on insufficient evidence. 28. The learned counsel for the Respondent, Mr. Amit Bansal, has made a succinct two pointed submission, firstly, that the Counsel of Appellant himself had agreed to proceed with the case without waiting further for cross examination of these Panchas, as recorded in paragraph 9 of the CESTAT order and second, arising from the search and seizure conducted concurrently with the search and seizure on the premises of the Appellant, this Honourable Court in the appeal preferred by Reliance Cable Industries, had refused to interfere in the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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