Customs, Excise and Gold Tribunal - Mumbai
Aum Aluminium Pvt. Ltd. vs Commissioner Of C. Ex. on 8 July, 2005
Equivalent citations: 2005(190)ELT393(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. Duty of Rs. 2,86,40,790/- under Section 11A(1) & Rs. 2,12,016/- on 14723.325 kgs of Aluminium Section valued at Rs. 13,25,099/- seized from 'godown of Vinviv Holding and Trading Co Pvt. Ltd. on assessee-appellant M/s. Aum Aluminium Pvt. Ltd. along with penalty of Rs. 2,88,52,806/- under Section 11AC and Rs. 10,000/- under Rule 173Q(1) with a redemption fine of Rs. 10,00,000/- and penalty of Rs. 5 lakhs each on Vinviv Holding and Trading Co. Pvt. Ltd. & Shri Vijay Aggarwal proprietor of Aum Aluminium under Rule 209A have been imposed consequent to an enquiry proceedings launched resulting in a notice, pursuant to a specific information to the effect that the assessee was evading duty.
2. After hearing both sides and considering the details as given in the annexures to the show cause notice and on perusal of the statements of the Transport Companies personnel and inspection of the seized records, we find that the burden on the department to establish the case with cogent material. While the show cause notice has prima facie on consideration of the material raised a grave charge we find that the adjudicator has not performed, in a manner required of a quasi judicial authority. The specific plea raised were required to be met and brought to a logical conclusions, if necessary by putting questions, in nature of cross-examination of witness getting the details especially as regards the supplies effected by the oil companies and the payments effected by and through when enquired into. We would, therefore, direct the adjudicator to summon the witness and put such questions as deemed necessary, even amounting to nature of cross-examination, to establish the truth. There is no reason for the adjudicator not to place questions and obtain the truth from the witness even if the noticees do not seek the cross-examination of the department of the statements and authors of the documents. This should be done in the presence of the appellants.
3. In the facts of this case, we find the credibility of the material evidence is required to be establish and thereafter an interpretation arrived at and then the determination of the charges in the notice and consequences determined under the Act and the Rules.
4. Appeals allowed as remand for de novo decision.
(Pronounced in Court)