S. THANGASAMY Vs. C.C.E. MADURAI

JUDGEMENT

(1.) This appeal arises from the order in original No. 16/932 dated 26.2.93 by which the Collector has confirmed duty demand of Rs. 2,03,381/ - from the appellant on the alleged illicit removal of biris during the period from 4/87 to 3/91 under Rule 9(2) read with Section 11A (1) of the CE Act, 1944. Penalty of Rs 50,000/ - has also been imposed on the appellant under Rule 9(2), 52A, 173Q 210 and 226 of the CE Rules, 1944. Penalty of Rs. 15,000/ - each has also been imposed on S. Gnanaolivu and S.Kuthalingam who are not in appeal before us. Therefore, we are concerned with the appeal before us. Therefore, we are concerned with the appeal filed by the S. Thangaswamy, Proprietor of M/s Champion Beedi Factory.

(2.) This matter has been directed by the Madras High Court to be disposed of after the appellant has been given an opportunity to file the appeal against the impugned order and after considering their application for condonation of delay, for choosing a wrong forum to file the case before the High Court. The condonation application was taken up and allowed in terms of the direction of the High Court. Appeal is now taken up for hearing in terms of the direction of the Hon'ble High Court in the Writ petition No. 11366/93.

(3.) The case against the appellant is that the departmental officials visited a large number of private biri workers and took their statement and seized pass book maintained by them wherein they mentioned that they were bringing raw materials from the appellant and rolling biris and supplying back biris to the appellant. There was raid in the residence of the appellant but nothing incriminating was found except statutory registers which were found to be in order. Appellant's contention is that the mahazar witnesses and the other witnesses were not produced for cross examination nor the out side workers, who alleged to have rolled biris and supplied to the appellant were also not called for cross examination despite their several request in this regard. The appellant contended that private note books cannot be used against the appellant to allege that the appellant manufactured and clandestinely removed biris. In this regard the learned Counsel relied upon large number of judgements on each point on denial of cross examination as well as the demand being cannot be confirmed on the basis of private records maintained by out side workers without corroborative evidence collected by them with regard to the appellant himself purchasing raw material and manufacturing biris in his premises and removing the goods and receiving money, without payment of duty.