- (1.) WE have heard Sri B.P. Singh Dhakray, Senior counsel assisted by Sri Shakti Singh Dhakray, and Sushil Kumar Srivastava, for the appellant. Sri S.P. Kesarwani, learned Standing Counsel appears for the Central Excise Department. In this appeal under Section 35G of the Central Excise Act, 1944, the appellant is aggrieved by an order dated 10.1.2013 passed by the Custom Excise and Service Tax Appellate Tribunal (CESTAT), by which it has decided the application under Section 35F of the Central Excise Act, 1944 in the pending appeals and has directed the appellant to deposit Rs. 1 Crore as against the recovery of Central Excise duty of Rs. 7,74,09,518 and equal amount of penalty.
(2.) THE order has been challenged on the ground that the appellant's factory started its production in June 2007. There was no evidence to support the show cause notice and the order imposing excise duty. There was no foundation on the materials seized to form an opinion of prima facie suppression of production and clandestine removal from January 2007. Sri B.P. Singh Dhakray, learned counsel for the appellant submits that the photocopy of the registers, recovered from Sri Raghu, an employee of the Firm, made the basis for imposition of Excise duty, could not be relied upon inasmuch as the photocopy is not admissible in evidence. He has relied on the decisions in U. Sree v. U. Srinivas, in decided by Hon'ble Supreme Court on 11.12.2012. He has also relied on the decision of Commissioner of Customs v. Sayed Ali in of the Supreme Court dated 18.2.2011, to submit that the seizure was not made by the competent authority as the authority seizing was not the authority notified under the Act. The notification was made after the judgment in Sayed Ali's case on 6.7.2011.
(3.) IT is submitted that in the present case, there was no evidence whatsoever regarding the suppression of production and clandestine removal, photocopy of which original was not shown to the appellant and hence it could not be taken into consideration for imposition of excise duty. The cross examination of witnesses was not allowed.;