Page 283 - ELT_15th July 2020_Vol 373_Part 2

2020 ] A.V. AGRO PRODUCTS LTD. v. COMMR. OF CUS., C. EX. & CGST, NEW DELHI 265

C. Personal hearing/cross-examination :
It is apparent from the order under challenge that personal hearing was
given to these appellants initially on 23-4-2007. However, none of these appel-
lants appeared. It is on 28-5-2008 that appellant Sh. Rohit Aggarwal and M/s.
Genex Food Pvt. Ltd. that too vide their letter dated 27-5-2008 made their sub-
missions denying the allegations of the show cause notice and requesting for the
relied upon documents as well as the cross-examination of the witnesses. By that
time i.e. on 27-5-2008 M/s. H.G. Oil Carriers Noticee No. 5 (there were 13 no-
ticees in the present case and 7 noticee of them i.e. main noticee along with No. 5,
6, 8, 10, 12 & 13 have already applied to the Settlement Commission, penalty
against noticee no. 7, 9 & 11 was already dropped observing them to be fictitious
firms).
M/s. Genex Consultant Pvt. Ltd. & Sh. Rohit Agarwal, Director thereof,
were being duly heard by the Adjudicating authority below on 26-10-2009 and
appellant M/s. A.V. Agro Products chose to put forth the defence vide their let-
ter dated 20-10-2009. It is quite apparent from the order under challenge that de-
spite ample effective opportunities of personal hearing being given, the appel-
lants have not properly put forth their defence. They had rather adopted a strat-
egy of seeking adjournments and therefore were noticed absolutely non-
cooperative by the adjudicating authority below. It is thereafter that the matter
was decided based on the facts on record and the written reply received by the
respective noticee. These observations are sufficient to hold that there is no deni-
al of opportunity of being heard. The grievance of violation of principle of natu-
ral justice on this account is therefore not sustainable. As far as the plea of denial
for cross-examining the witnesses is concerned as already observed there was
rather non-cooperation on part of the appellant. Irrespective that cross-
examination is the key for fair trial so as to dug out the actual truth but the same
cannot be claimed as a matter of right or as a statutory mandate specifically
when appellant were not even keen to submit their defence. Hence, their griev-
ance on this aspect is also hereby rejected.
As far as applicability of Section 9D of Excise Act/138B of Customs Act
as rightly observed by the adjudicating authority that the statement recorded
were more in the nature of confession. The same cannot be the scope applicabil-
ity of Section 9D. I draw support from Silicone concept (supra) as is emphasised
by the Department.
D. Merits of the present case :
Lastly, coming to the merits, I observe from the record, that there were
reports proving that M/s. Pioneer Soap and Chemicals, the main no-
ticee/Noticee No. 1 have issued fake invoices in the name of fictitious firms, such
as M/s. Ashtuosh Traders, Noticee No. 7, M/s. Kamakhya, Noticee No. 9, M/s.
N.K. Enterprises, Noticee No. 11 showing manufacture and clearances of the
soap from CPO imported by them illegally for taking exemption under im-
pugned notification and diverting the impugned CPO to Noticee No. 2 to 4 with-
out using the said imported goods in manufacture of soap i.e. for the declared
intended use. Otherwise also the said main noticee has already acknowledged
the guilt by approaching before the Settlement Commission. Statement of Shri
Harinder Singh, Partner of M/s. H.G. Oil and Carriers, (Noticee No. 5) has ex-
EXCISE LAW TIMES  15th July 2020  283