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TMI Blog2023 (12) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... ere relied upon, amounts to violation of principles of natural justice. The said decision is clearly distinguishable as in that case the request for cross examination was rejected by the Adjudicating Authority on the reasoning that no justifiable and tangible reasons have been furnished for cross examination whereas in the present case on the request for cross examination of the witnesses on behalf of the appellant, the same was allowed, and the four witnesses, who appeared were cross examined. The appellant themselves are not certain about the goods seized from the four godowns and has therefore taken different and contradictory stand. The other limb of submissions is that the goods were seized earlier during the search in the month of April 2008 and were provisionally released on 4.6.2008, which were stored in the four godowns, which has now become the subject matter of the show cause notice - as recorded by the adjudicating authority that when the details of the seized goods with the details of the goods seized from various godowns of the appellant in the month of April 2008, were tallied, it was found that not a single entry was common in both the cases and the goods seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises located at Banar Chouraha, Banar, Jodhpur; godown opposite Veer Tejaji Hostel, Near tempo stand Nandari, godown at Raneja Bhavan, Defence Colony, Main Nanderi Road, Jodhpur and godown at Plot No. 273, Tirupati Nagar, Nandari, Jodhpur on 10.08.2008 and 12.08.2008. The search of the said 4 godown premises resulted in seizure of raw materials for manufacture of gutkha and some quantity of manufactured gutkha in loose condition. Notably, the search party also found an assortment of packing material bearing the name of the appellant and several other gutkha manufacturers such as Yogesh Associates, Silvassa, Anand Tobacco Products, Thane, Sunrise Food Products to name a few, which showed that the raw material etc. which were not being used were stored in the godown. A show Cause Notice dated 04.08.2009 was issued demanding Central Excise duty to the tune of Rs. 21,48,30/- and resultant penalties on the appellant and several others. The Adjudicating Authority s order dated 18.04.2011 and the Appellate Authority s order dated 19.02.2013 being against the appellant, the matter travelled in appeal upto CESTAT in the first round and vide order dated 20.05.2015 was remanded to the Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.] 5. The Appellant has been raising the aforementioned contention repeatedly on the earlier round of litigation also and as a result, the matter was remanded by the Tribunal as well as by the Commissioner (Appeals). Therefore, in the third round of litigation, I find that the Adjudicating Authority has very cautiously examined the compliance of the principles of natural justice. Firstly, enough opportunities were granted to the appellant for personal hearing on 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by forcefully and unwillingly. Question 2 : Please tell material goods in 4 godown (1) Plot No.273,Tirupati Nagar, Jodhpur (2), Banar Chouraha, Jodhpur (3), Near Tempo Stand, Nandari Jodhpur (4) Bhawan Jodhpur whether you know that goods belongs Shree Pan Masala, Banar Jodhpur and stored made clearance without proper documents. Answer.: - I was not aware about the goods material stored in godowns. 3 . Shri Sen: Question 1 Please see your statement dated 23.d04.2008 and told that these statements tendered by you are willingly, freely and voluntarily. Ans.:- The statements get in written under pressure. Question 2 - Please tell material goods lying in 4 godowns (1) Plot No.273, Tirupati Nagar, Jodhpur 92), Banar Chouraha, Jodhpur (3) Near Tempo Stand, nandari Jodhpur (4) Bhawan Jodhpur whether you know that goods belongs Shree Pan Masala, Banar Jodhpur and stored made clearance without proper documents bills. My work was limited to factory. I am not aware about godowns. I was not aware about the goods and did not know that from where the goods come and stored in godowns. 4 . Shree Ram Question 1 : Please see your statement dated 15.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it cannot be concluded that principles of natural justice has been violated. Further, relying in M/s. Mittal Impex (supra), no prejudice has been shown by the appellant to support his contention. The appellant in the present case has already delayed the proceedings on this ground and though opportunity was granted by the Adjudicating Authority but the same was not fully availed. 8. I agree with the findings recorded on the basis of the above cross examination of the witnesses. The statements recorded on several dates could not have been taken forcefully and though the statements were recorded in 2008 and 2009, however, no evidence has been produced to show that the witnesses were in any manner harassed or provoked to give statement against the appellant. The adjudicating authority has further analysed the cross examination of these witnesses to record the finding that they being the active directors could not have been unaware of the duty liability and removal of goods or unaccounted material kept in the godown. He also evaluated that in the case of Shri Ram Bhadu, the statement made was contradictory in as much as he said that, the goods do not pertain to their factory , but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of argument taken by the learned Counsel for the appellant is that at the material time, the appellant was having manufacturing units at various places and the appellant purchases the raw material for all units and distribute it to them. Therefore, the raw material which was purchased from the open market to be utilised for trading or distribution to other units was kept in the said four godowns. In support of this contention also the appellant has not produced any evidence and therefore it was observed that the inputs or raw materials for further manufacture of finished goods were in fact procured without any bills and also they were not recorded in any statutory records under Rule 12(1) of Central Excise Rules, 2002, which provides : Rule 12. Filing of Return: - (1) Every assessee shall submit to the Superintendent of Central Excise a monthly return in the form specified by notification by the Board, of production and removal of goods and other relevant particulars, within ten days after the close of the month to which the return relates: [ Provided that an assessee, manufacturing pan masala falling under tariff item 2106 90 20 or pan masala containing tobacco f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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