ORDER
Shri S.L. Peeran (oral)
1. In this appeal, appellant has challenged the correctness of Order-in-Original No. 41/96 dated 8.3.96 by which the Commissioner has confirmed the allegations made in the show cause notice with regard to clandestine removal of Polyster Viscose Yarn involving a duty amount of Rs. 2,15,740.00 and confirmed the penalty of Rs. 50,000/. In his detailed order, the Commissioner in paras 17 to 20 has dealt with in great detail about the allegations and the corroborative evidence which is available on record with regard to clandestine removal of 34s/50s PV yarn without payment of duty and without duty paying documents. The statements of purchasers of these materials have also been recorded. They were also cross examined.
2. In his statement dated 4.1.94, Shri K.N. Sathasivam, son of Shri K. Natarajan, yarn merchant, Tirupur deposed that he was buying polyster viscose blended yarn from appellant for the past three years on several occasions without GPs and without payment of duty. The statement of the General Manager Shri C.M.P. Menon and the Factory Manager, Shri Mohanan Nair also confirmed the clandestine removal of goods. The main defence taken by the Ld. Counsel for seeking remand of the matter is that the case is built on the basis of slips recovered from Quality Controller namely Shri B. Pradeep Kumar and from the watchman of the mill. The slips only indicated about the removal of fruits like pappaya, coconut, tapioca and grass put in bags and there was no admission with regard to removal of PV yarn and PV waste. They had asked for cross examination of Pradeep Kumar which was denied. Ld.Counsel submits that they will be able to demonstrate through cross examination of Pradeep Kumar that what was removed through slips were only these fruit items and not 34s PVY/54s PVY without payment of duty. In the slips, there is no specifications indicated and mere statement of the GM and Factory Manager and Quality Controller and watchman is not sufficient to prove the charge of clandestine removal as has been held in large number of Tribunal judgements. He submits that the quantity mentioned in the GPs does not tally with the slips maintained by the watchman. Therefore, the findings arrived at by the Commissioner that there was corroborative evidence and it tallied is not correct. He submits that appellant company is now under BIFR and presently closed. However, the factory office is functioning. He submits that there is violation of principles of nature justice, in as much as that Pradeep Kumar did not turn up for cross examination although summons were issued and opportunity being given to appellant to demonstrate that his statement was taken under duress. He submits that mahazar witnesses merely signed the documents and statements are not reliable. The same were brought out by cross examination and mahazar witnesses are not present at the time of cross examination. As the order is vitiated due to various reasons, he seeks for setting aside the order and remanding the matter for de novo consideration.
3. Shri S. Sudarsan, Ld.DR took me through all the statements of the witnesses. He points out that full opportunity was given to cross examine all the witnesses. Shri Pradeep Kumar, Quality Controller is the only person on whose statement the case has been built up. The statement given by Pradeep Kumar with regard to removal of PV yarn is corroborated by the Factory General Manager, Factory Manager, Watchman and by Shri C.P.M. Menon, Managing Director. In view of purchasers of yarn also admitted having purchased these on large number of occasions without bills and payment of duty. He submits that statements were not dictated and it was for the appellant to have produced their own witnesses for cross examination. He submits that they cannot make a grievance about Pradeep Kumar not turning up for cross examination. Shri Pradeep Kumar was working for appellant. His statement has not been resiled and therefore the Commissioner has given a detailed finding on each and every aspect of the evidence and therefore there is no ground for setting aside the order and for remanding the matter. He points out that mahazar witness speaks for itself. The documents overrides the oral statement given by mahazar witnesses merely now that seizure took place at the time of recording mahazar when they were present and signed it willingly without any coercion. The Commissioner has also noted about all these aspects of the matter in his detailed order. He, therefore, seeks for confirmation of the order.
4. On careful consideration of the submissions, and on perusal of the entire records in the matter, I am satisfied that there is great force and truthfulness in the submission by Ld.DR in the matter. The statement of Pradeep Kumar and Watchman with regard to removal of the PV yarn was corroborated by no other than Managing Director, General Manager, Factory Manager and the most important corroboration is in the form of purchasers of the material. The purchasers clearly stated that they were producing these goods without payment of duty on large number of occasions without GP. It is seen that all the major witnesses of the appellant namely Managing Director, General Manager, Factory Manager and Watchman have not resiled from the statement nor they have come forward on their own to depose before the Commission. The Commissioner has given full opportunity to appellant. He has issued summons to Pradeep Kumar to appear and depose and also present himself for cross examination. Shri Pradeep Kumar was working for appellant and appellant should have also taken steps to present him for cross examination. The department cannot be blamed on his absence for cross examination despite summons. It also leads to establish that Pradeep Kumar’s earlier statement stands as it has not been resiled and he was not willing to come forward to face the cross examination. Failure to face cross examination will clearly indicate that his earlier statement is true and correct and that there is no reason to disbelieve the same. The Commissioner has given a detailed finding in paras 18-20 and dealt with the point of mahazar witnesses not signing the mahazar as alleged by appellant. He has clearly noted that this is a belated and vain argument and taken up after a lapse of time and it was only to take up as a belated defence. The findings given by the Commissioner are all sustainable and in view of the fact that there is clear corroboration from the top Managing Director, General Manager, Factory Manager and Watchman and purchasers of the material. There is no reason to disbelieve the evidence. Merely because Pradeep Kumar, Quality Controller has not appeared for cross examination that by itself does not make the impugned order inoperative. Appellant have not chosen to cross examine the watchman from whom slips also were seized. They have not shown that there is a contradiction in the slips maintained by watchman and Pradeep Kumar. Nothing prevented the appellant to produce the watchman to contradict the statement and show that what was cleared was only fruits and not yarn. Appellants themselves have chosen not to defend their case sufficiently by producing rebuttal evidence. Therefore, as no other plea having been taken, the confirmation of duty in the matter is upheld. However, taking facts and circumstances into consideration and also with regard to appellants company having being closed and faced with severe financial hardship, penalty of Rs. 50,000/- imposed is reduced to 20,000/-(Rupees Twenty thousand only). Except for this modification of penalty, appeal is rejected.
(Pronounced and Dictated in open court)