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TMI Blog2022 (1) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be going to change even if the appellant would not have conducted the cross examination of Sh. Pawan Kumar which clearly violats the principle of natural justice by denying the cross examination of Sh. Pawan Kumar. During cross examination of Shri Roshan Lal, Sh. Roshan Lal has retracted his own statement and the Revenue has relied on cross examination. In the statement, during investigation, Shri Roshan Lal stated that they were not procuring any goods and the goods were procured by the appellant whereas during the cross examination, he stated that they were engaged in the purchase and sale of raw tobacco. He also admitted that he is not the authorized person to give statement on behalf of M/s Roshan Lal Pawan Kumar whereas Shri Pawan Kumar in his statement stated that his father is correct - The entire case is based on the statement of Sh. Roshan Lal and Sh. Pawan Kumar against the appellant. As there are lot of contradiction in the statement and cross examination of Shri Roshan Lal, therefore, the statement of Shri Roshan Lal cannot be relied upon to allege that the appellant was receiving the goods through M/s Roshan Lal Pawan Kumar directly through suppliers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in the retail business. Their gross sale is being less, they approached Shri Vikash in 2007-08 through their relative residing in their neighborhood who the relative of Sh, Amar Nath. As they were poor people, they agreed to purchase tobacco for Sh. Amar Nath, in return, they were receiving commission @ 10% of bill amount. All the purchases were made on the direction of LDAN as actually they were not placing any order of any material. M/s LDAN was purchasing the tobacco in their name and sale was shown to M/s LDAN. On the basis of statement of Roshan Lal Pawan Kumar and various statements of transporters and other suppliers, it was alleged that the appellant is procuring the tobacco by using name of Roshan Lal Pawan Kumar without payment of duty which was used in the manufacture of snuff which was ultimately cleared without payment of duty. On the basis of these facts, a show cause notice was issued to the appellant and various suppliers of raw material for confiscation of goods, demand of duty from the appellant along with interest and to impose penalties on the appellant and other co-appellants. The matter was adjudicated, the demand of duty along with interest was confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alized and Shri Vikash Grover on behalf the appellant sought adjournment but the Adjudicating Authority has disallowed the same and the matter was decided without giving any opportunity of cross examination. In that circumstance, the statement Sh. Pawan Kumar cannot be relied upon. 7. Further, the cross examination of Sh. Roshan Lal is contrary to the statement given during the investigation and there is no evidence on record and for procuring raw material by the appellant. He further submits that apart from tobacco, other ingredients are also required for manufacture of snuff. None of the suppliers of these items has been investigated, in the absence of any evidence of procurement of other raw materials, the allegation of clandestine removal of snuff remains unproved. 8. He further submits that during the course of investigation nothing adverse was found from the appellant nor any incriminating statement was recorded. It is his submission that there is no evidence with regard to the transportation of finished goods or raw materials to the appellant s factory. There is no statement on record that the supplier of goods supplied the goods to the appellant. There is no evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handi by a Neeraj Kumar in the name of Sh. Satish Kumar Khandwa. Both the said persons were found to be fictitious. Further, 43 consignments of snuff/Mehndi were found to have been booked from Bathinda and Ferozepur railway stations for Khandwa in the name of fictitious firms during investigation. Therefore, in view of above these reasonable doubts which they failed to rebut the same. She relied on the decision of Hon ble Supreme Court in the case of D. Boormull-1983 (13) ELT 1546 (SC) to say that once the department casts a reasonable doubt, it is for the respondent to answer the allegations. Accordingly, she supported the impugned order. 13. Heard the parties and considered the submissions. 14. It is the second round of litigation. In the earlier round of litigation, this Tribunal vide its order dated 28.1.2013 remanded the matter back to the adjudicating authority with following direction: - 6. We make it clear that we have not expressed any opinion on the merits of the case and impugned orders are set aside only on the basic principle of violation of natural justice. The adjudicating authority is free to decide the matter afresh, based upon the outcome of cross exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Shri Vikash Grover and a copy of the proceedings drawn was handed over to him under his proper receipt. During the examination-in-chief of Shri Pawan Kumar stated that he had tendered his statement dated 08.02.2010 before the DGCEI officers without any duress or pressure and that his statement was factually correct the best of his knowledge and belief. In view of these depositions of Shri Pawan Kumar, I am convinced that the position was not going to change even if the advocate of the noticee would have conducted the cross examination of Shri Pawan Kumar. As all these proceedings were conducted in the presence of Shri Vikash Grover, partner of the noticee, I feel that no further cross examination of Shri Pawan Kumar was warranted. 16. As per the observations made in para3.5 hereinabove of the impugned order, wherein it has been held that the allegation of receipt of raw material of tobacco in the manner and denied cross examination of other persons clearly indicated the whole case is made out on the basis of statement of Sh. Roshan Lal and Sh. Pawan Kumar. Further, the cross examination of Sh. Pawan Kumar was concluded by the adjudicating authority holding that the exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cco to M/s Baldev Raj sons Mukatsar. Q.No.8 Who were the main suppliers of Raw Tobacco to M/s Roshan Lal Pawan Kumar, Mallgodown Road, Mukatsar? Ans. The main suppliers of Raw Tobacco were M/s Shri Traders, kaimganj (UP), M/s Ishaq Tobacco Store Kaimganj (UP), M/s Styanarain Aggarwal Co., Kaimganj (UP) etc. I don t remember at present the exact type of raw tobacco received from these firms. Q.No.9 Do you have any business relationship with M/s Lachchman Dass Amarnath, Giddarbaha? Ans. Yes, I issued all the bills through cash to unknown persons as adviced by Sh. Jagdish, an employ of M/s Lachchman Dass Amarnath, Giddarbaha. Q.No.10 Why you were issuing cash bills on being advised by Sh. Jagdish, of M/s Lachchman Dass Amarnath, Giddarbaha? Ans. I was adviced and assured by Sh. Jagdish that I should issue the bill of cash to unknown person and in return he will give me 2% cash of the bill value. Q. No.11 You have stated above in Answer No.10 that Sh. Jagdish was paying 2% commission to you. Do you have any evidence or have you reflected the same in your records ? Ans. No, Sh. Jagdish used to give me commission by cash. Q. No.12 Have you ever sold Raw Tob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar whereas Shri Pawan Kumar in his statement stated that his father is correct. During the examination, he also mentioned the name of one Shri Jagdish, who used to give commission @2% in cash. Shri Jagdish used to supply the cash and the purchase documents on behalf of the appellant. Shri Roshan Lal in his statement stated they have not sold raw tobacco to the appellant and he admitted that they supplied raw material to other parties in open market whereas in his statement during investigation he has stated that he is procuring entire goods on behalf of the appellant. The entire case is based on the statement of Sh. Roshan Lal and Sh. Pawan Kumar against the appellant. As there are lot of contradiction in the statement and cross examination of Shri Roshan Lal, therefore, the statement of Shri Roshan Lal cannot be relied upon to allege that the appellant was receiving the goods through M/s Roshan Lal Pawan Kumar directly through suppliers. Further, we find that to manufacture snuff of huge quantity, other raw material/packing material also required but no such evidence of procurement of other raw material/packing material on record. We hold that without evidence on record from whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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