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TMI Blog2023 (7) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... her appellant nor his representative appeared and hence the case was proceeded ex parte by the adjudicating authority. When the appellant had chosen not to participate in the proceedings, there was no scope to call for the witnesses for cross examination - the appellant have to be blamed for the violation alleged by them. Secondly, the witnesses examined are not any third parties but the proprietor of the company and their paid employees being the Accountant, Technical Operator and the Guard who are actually aware of the working of the unit. The evidentiary value of their statement is not lost for the reason that the same could not be proved on cross examination. Considering the decision of Delhi High Court in J K CIGARETTES LTD. ORS. AND M/S. GTC INDUSTRIES LTD VERSUS COLLECTOR OF CENTRAL EXCISE ORS. [ 2009 (8) TMI 64 - DELHI HIGH COURT] wherein it had been observed that right of cross examination can be taken away, I am of the considered opinion that test of cross examination in the given circumstances be superfluous. Consequently, the contention of the appellant that no opportunity has been granted to cross examine the witnesses needs to be rejected. The next conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or contravention of provisions of rules with intent to evade payment of duty - HELD THAT:- The goods were brought in the factory premises without having proper invoices/documents with intent to clear them clandestinely. During the visit, the said goods were seized as no record was found to be maintained. Further, the modus operandi of the appellant as revealed from the statement made by the Accountant, Shri Aviraj Jain that the goods purchased from the market were entered in the finished goods register and also entered the same in the register at the time of sale; clearly shows that the manufacture was shown only on the paper. In the entirety circumstances, the lead ingots seized were rightly confiscated and the redemption fine as well as the penalty imposed under Section 11 AC of Central Excise Act read with Rule 25 of Central Excise Rules, 2002 is absolutely justified and no interference is called for. There are no substance in the arguments advanced by the learned Counsel for the appellant - Appeal dismissed. - Excise Appeal No. 52026 of 2021 ( SM ) - FINAL ORDER NO. 50918 / 2023 - Dated:- 18-7-2023 - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) Shri Jitendra Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Technical Operator, Shri Sonu were recorded. Subsequently, the statements of the Proprietor, Shri Mohit Gupta and Accountant, Shri Aviraj Jain were also recorded. 4. Show cause notice dated 12.09.2016 was issued to the appellant as to why the seized goods be not confiscated under Rule 25 of the Central Excise Rules, 2002 and why penal action under Section 11 AC (1)(c) of the Central Excise Act, 1944 be not initiated. Further, penalty was proposed on the Proprietor as well as on the Accountant. The show cause notice directed the appellant to produce all the evidences, on which they intent to rely upon in support of their defence. The show cause notice was adjudicated by the Asstt. Commissioner. The appellant had chosen not to participate in the proceedings, which is evident from para-15 of the order-in-original dated 25.04.2019, which is quoted hereinbelow:- 15. The assessee did not submit any reply to the show cause notice till date. An opportunity of personal hearing was afforded to the assessee and fixed date for personal hearing on 16.02.18, 20.02.18 and 23.02.2018 but neither the assessee nor their representative have turned up for personal hearing. Hence, the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the Guard who are actually aware of the working of the unit. The evidentiary value of their statement is not lost for the reason that the same could not be proved on cross examination. The provisions of section 9D of the Central Excise Act, 1944 were examined by the High Court of Delhi in JK Cigarettes - 2009 (240) ELT 189 and while upholding the validity of the said provision it was observed as: 24. We may also point out at this stage itself that the power of the Parliament to make such a provision is not in question. It is also conceded by the learned senior counsel appearing for the petitioners in this case that such a provision could be incorporated in the statute, which is pari materia of Section 32 of the Evidence Act viz., to rely upon statements of certain persons even when they have not been produced for cross-examination, under the given circumstances. Thus, though it cannot be denied that the right of cross-examination in any quasi-judicial proceeding is a valuable right given to the accused/noticee, as these proceedings may have adverse consequences to the accused, at the same time under certain circumstances, this right of cross-examination can be taken away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken away, I am of the considered opinion that test of cross examination in the given circumstances be superfluous. Consequently, the contention of the appellant that no opportunity has been granted to cross examine the witnesses needs to be rejected. 11. The next contention made by the learned counsel for the appellant is that merely because an entry could not be made in RG-1 register, the said goods cannot be termed as unaccounted. The omission, if any, was only a failure to make the entry of the goods in the production register and such omission being of technical nature at best can fall under the ambit of rule 27 of the Central Excise Rules, 2002, distinguishing the penalty imposed in terms of section 11 AC, on account of fraud, collusion or wilful miss statement. The appellant relied on several decisions on the principle that accounting has much wider meaning than merely making entry in the RG1 register. On examining the case records, I find that it is not a simple case of not accounting the goods in the accounting register but a deliberate attempt to mislead the department, particularly in view of the facts which came to light during the visit to the factory premises as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department. It is a settled principle of law that fraud vitiates all solemn acts. Relying on the observations of the Apex Court in the case of Meghmala Ors. Vs. G. Navasimha Reddy Ors. 2010 (8) SCC 383 that dishonesty cannot be permitted to bear the fruit and benefit to the person who played fraud and in such circumstances I am not inclined to accept the submissions of the learned counsel for the appellant. The learned counsel during the course of arguments have referred that the entries were made in the computer and have now placed on record certain documents. It is a well-known principle that suppression of material document amounts to fraud and the same cannot be relied on Gowrishankar Anr. Vs. Joshi Amba Shankar Family Trust - 1996 (3) SCC 310. 14. The appellant has now taken a stand that the statements recorded were taken under threat or coercion and hence the same cannot be relied upon. The said contention is to be rejected outrightly as the same appears to be just an afterthought as it has never been taken earlier. If the statements were taken under threat or coercion, those persons could have taken objection and retracted those statements at the earliest point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y justified and no interference is called for. In this regard, I would like to refer to the findings of the impugned order as under:- 6.4 I find that the facts of the case clearly show that the appellant was indulged in passing cenvat credit fraudulently through fake invoices, without manufacturing the goods and only managed records and invoices of raw materials just to corroborate the manufacture, which has not been actually carried out. I find that in absence of any manufacturing activity, storage of the lead ingots, that too without any document, was with intent to camouflage the activity being carried out in contravention of the provisions of the Central Excise Act, 1944 and the Rules made thereunder. I, therefore, hold that the goods seized from the premises of the appellant are liable for confiscation. I further hold that as the goods have been held liable for confiscation, penalty equal to the amount of duty is imposable under Rule 25 of the Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944. Further, considering the nature of activity, the appellant has been found indulged in. I find the amount of redemption fine is justified. My views f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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