2009 (8) TMI 903 - AT - Central Excise

CENVAT credit - it was alleged that credit has been availed by the appellant without actually receiving input in question - denial of cross-examination - principles of natural justice - Held that - Request for cross-examination has to be examined in the context of facts and circumstances of that particular case - If request for cross-examination is not to be accepted in such a case, we really fail to understand as to when and in what circumstances, the same has to be allowed - the impugned order is liable to be set aside on this short ground itself and the matters are required to be remanded for fresh decision after allowing cross-examination of the witnesses whose statements are relied upon - appeal allowed by way of remand.

Summary

Issues Involved:
1. Violation of Principles of Natural Justice
2. Denial of Cross-Examination
3. Reliability of Statements and Corroborative Evidence
4. Imposition of Penalties
5. Procedural and Evidentiary Concerns

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The Tribunal identified that the impugned order was passed in gross violation of the principles of natural justice. The appellants were not given a fair opportunity to cross-examine the witnesses whose statements were relied upon by the Revenue. Despite multiple requests for cross-examination, the adjudicating authority proceeded to pass the order without addressing these requests, thereby violating the principles of natural justice.

2. Denial of Cross-Examination:
The appellants argued that the entire case of the Revenue was based on the statements of transporters, truck owners, and drivers. They requested the cross-examination of these individuals to test the veracity of their statements. The adjudicating authority allowed cross-examination of only 4 out of 69 deponents, and even then, cross-examination of only one person was conducted. The Tribunal emphasized that cross-examination is crucial when the case heavily relies on statements, and denial of such cross-examination without valid reasons constitutes a breach of natural justice.

3. Reliability of Statements and Corroborative Evidence:
The Tribunal noted that the Revenue's case was primarily based on statements from transporters and other individuals, which were not corroborated by primary evidence. The Tribunal referenced the Supreme Court's decision in Sita Ram Sao v. State of Rajasthan, which clarified that corroboration must come from credible and satisfactory evidence. The Tribunal found that the statements, which were not tested through cross-examination, could not be considered reliable or corroborative.

4. Imposition of Penalties:
The Tribunal addressed the imposition of penalties under Rule 26 on the transporters, noting that if no goods were actually transported, penalties could not be justified. The Tribunal referenced the Larger Bench decision in Steel Tubes of India Ltd. v. CC Ltd., which held that penalties could not be imposed without proper evidence of transportation. Additionally, the Tribunal highlighted procedural discrepancies where penalties were proposed under different rules than those ultimately applied.

5. Procedural and Evidentiary Concerns:
The Tribunal observed that the adjudicating authority failed to consider the appellants' submissions and expert opinions regarding the unreliability of check-post records. The Tribunal cited its decision in Metal Gems & Ors. v. CCE, Daman, emphasizing the necessity of offering witnesses for cross-examination when their statements are relied upon. The Tribunal also noted that the issuance of corrigenda to replace invoice numbers in the show cause notice raised questions about the validity and timeliness of the proceedings.

Conclusion:
The Tribunal set aside the impugned order on the grounds of violation of natural justice and remanded the matter for fresh adjudication. The adjudicating authority was directed to allow cross-examination of the witnesses whose statements were relied upon. The Tribunal made it clear that it had not expressed any opinion on the merits of the case and that the appellants were free to present their submissions and rely on relevant judicial decisions during the re-adjudication process. All stay petitions and appeals were disposed of accordingly.