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TMI Blog2022 (12) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... kha in their factory at Jodhpur during the period 2008. They were paying royalty @1% for using the brand name "Goa 1000" to its brand name owner, Raj Group, Thane. There were other manufacturers also of Guthkha, which were being marketed under the very same brand name at the relevant time, few of them being i) M/s. Royal Marwar, near Ahmedabad, ii) M/s. Yogesh Associates, Silvassa and few others in Delhi and other places. 3. Officers of DGCEI suspecting evasion of duty by resorting to clandestine removal of Guthkha manufactured by the appellant, searched the appellant's factory at Jodhpur. Searches were also conducted at premises of a Transporter at Bhiwandi, at office premises of Raj Group at Thane and certain documents were recovered and seized. Statements of various persons including an employee at the godown of a transporter, (M/s.G.M. Carriers) at Bhiwandi (who was not concerned with transporting the impugned goods), near Thane in Maharashtra, were recorded during investigations. 4. No investigations whatsoever was conducted with transporter namely M/s. KGN Transport, Jodhpur, who was assigned the job of transporting the goods from Jodhpur. 5. Upon completion of investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he premises of Raj Group of Companies and also statement of Mr. Suresh Jajra to substantiate the allegation of unaccounted procurement of raw materials, however, none of these evidences point to any specific instance of unaccounted procurement of raw materials for the Appellants factory at Jodhpur. The statement of Mr. Jajra was retracted and the said witness during cross-examination has categorically clarified that the documents listed at Sr. No.1 of Annexure-A, are pertaining to the activities of M/s. Royal Marwar Tobacco Products, Gandhinagar, Gujarat, which were purchased by his company Meenakshi Food Products. Despite the aforesaid clarification in his cross-examination, the ld. Commissioner blindly relies on his statement recorded under Section 14 without giving any valid and cogent reason, the record of cross-examination of this witness. 7.4 The investigations could not reach any customer to whom appellants have sold Gutkha allegedly removed clandestinely without payment of excise duty. Nowhere, any cash transaction could be unearthed establishing clandestine sale of Gutkha manufactured in the appellants factory, except for very vague generic statements. The witnesses Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther goods, which are alleged to be Gutkha cleared from the appellants factory without invoices, the LR's were prepared at Ahmedabad, and the handwriting of the person preparing the truck report at Piplej (Ahmedabad) is same as those appearing on the impugned LR's prepared at Ahmedabad and therefore the allegation that these goods had any relationship with the appellants factory cannot be upheld. In the worst, the LR's /truck reports show the transportation of some goods from Jodhpur to Ahmedabad and nothing else. Investigations in the case could not unearth any LR's prepared at Jodhpur for the offending goods and thus, in other words there is no evidence whatsoever in the case to show that the offending goods were transported from Jodhpur to Ahmedabad/Bhiwandi. 7.9 The unreliability of the deposition of this witness is evident from his deposition to the effect that GMTS is their associated transport company (of GM Carriers) and that booking of all these consignments at Jodhpur were done by M/s. GMTS, whereas the partner of M/s. GMTS has stated that they did not have any office in Jodhpur and that the booking at Jodhpur was done by M/s.KGN Transport. 7.10 Many of the statements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid para 5.7.8 also records the finding that the Advocate has failed to show how the aforesaid document copy of which is neither provided to them nor even an inspection is offered to them, was important in the present case. Appellants submit that the aforesaid finding of the ld. Commissioner suffers from total non-application of mind as it is absolutely beyond anyone's comprehension as to how a particular document is important without allowing him to see the said documents. The ld. Commissioner failed to appreciate that the very fact that the said document was relied on in the show cause notice demonstrated the relevance of the document and unless one is allowed to peruse and understand the document, the importance thereof could not have been demonstrated before ld. Adjudicating Authority. 7.15 That on the same set of evidence cases were booked against the appellant as well as group company of appellant viz. M/s. Shree Raj Pan Masala Pvt. Ltd., Jodhpur and demand in that case also based on purported entries made in note book maintained by Mr. Javed Gamir Shaikh. M/s. Shree Raj Pan Masala Pvt. Ltd. filed appeal before Hon'ble Tribunal against the Order-in-Original No.JOD- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere cross-examined on 04.10.2012 and 02.05.2013, before the Commissioner, during which it was brought on record that the said Javed Gamir Sheikh was not entrusted at all with any of the assignments as purported to have been admitted in his statement and the scribbling's in the note book were also contrary to the facts, thereby casting complete shadow on the evidence for raising the demand against the appellant. Appellant submits that under these circumstances ld. Ad. Adjudicating Authority ought to have refrained from relying on the statement of Sh. Javed, to confirm the demand. 7.18 During adjudication proceedings of this case, 9 witnesses were cross-examined before the ld. Commissioner who have completely discredited and contradicted the evidences relied on for issuance of the notice, and thereby posed a serious doubt about the authenticity and voluntariness of the depositions purported to have been made in their statements. However, the ld. Commissioner failed to give any finding whatsoever in this regard and failed to even mention anywhere in the impugned order a word about the cross examination rendering the impugned order as cryptic, non-speaking and issued without applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during which he deposed that G.M. Carriers at Bhiwandi were receiving the goods through the transporter, M/s. Gujarat Marathwada Transport Service from Ahmedabad, whose partner is Shri Abdul Aziz Patni. In his cross-examination Shri Abdul Aziz Patni stated that M/s.G.M. Carriers were not engaged in any transportation of Gutkha from appellants for their final delivery at Bhiwandi. Further, this witness in his cross-examination categorically contradicted the depositions of Shri Javed Gamir Shaikh, his employee given in statement recorded under Section 14 of the Act, to the effect that he was getting payment from Shri Abdul Aziz Patni or his transport company for rendering service to M/s. Gujarat Marathwada Transport Service. Further, this witness in his cross-examination categorically disowned the seized document containing pages 1 to 38 and in answer to question no.14 stating that he did not know anything of these documents and it did not pertain to his transport company. Thus, seized document based on which, the quantification of the duty demand is attempted in the notice is completely disowned by the transporter, who transported the goods from Ahmedabad to Bhiwandi and at whose be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, all the deponents have unequivocally , stated that the statements were recorded using threat, pressure, etc. and these statements were neither voluntary nor true. Adjudicating Authority relied on the statements of all these witnesses to draw adverse inference against the appellant. The impugned order is passed by relying on statements of witnesses who were not offered for cross examination by the appellant and thereby the impugned order is vitiated for violation of principles of natural justice. 7.23 That in the case at hand, there is no evidence of clandestine manufacture and/or removal from the factory of M/s. Shree Raj Exports Ltd., Jodhpur and further no evidence of excess receipt of raw material, packing material, etc. During material time, Goa 1000 Gutkha was being manufactured by various units or manufacturers including at Narela, Delhi and M/s. Royal Marwar, Ahemedabad. In these circumstances, no liability can be fastened on the manufacturer at Jodhpur without any evidence at Jodhpur end and in view of the above, no penalty can be impose on the Director of the appellant. The above ground is only for the reason that if manufacturer is held to be not liable f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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