2013 (9) TMI 580 - AT - Central Excise

Cenvat Credit - allegation of non receipt of inputs in their factory - right to corss examination - The request for cross-examination had been rejected in view of the fact that statements had not been retracted and further inculpatory statements were recorded from the Director and employees of the company - third member decision - Held that - statements of the transporters, owners, owners of the vehicles, drivers and CHAs who have given inculpatory statements against the assessee, should be made available for cross-examination and it is also held that there were many statements which were inculpatory - Decisions in NICO Extrusions Pvt. Ltd. 2009 (8) TMI 903 - CESTAT AHMEDABAD followed. The charges of availment of Cenvat credit without receipt of the inputs are serious allegations which cannot be held as correct without adequate/cogent evidences and it is also imperative that the witnesses be cross-examined to bring the truth on record as to how they have stated that the goods were never transported to the appellant. - stay to be granted.

Issues Involved:
1. Availment of Cenvat credit on inputs not received by the appellants.
2. Principles of natural justice and denial of cross-examination.
3. Requirement of pre-deposit for hearing the appeal.
4. Adequacy and sufficiency of evidence based on statements.
5. Remand for fresh consideration.

Issue-wise Detailed Analysis:

1. Availment of Cenvat credit on inputs not received by the appellants:
The main issue revolves around the wrongful availment of Cenvat credit by M/s. Gujarat Cypromet Limited on inputs that were allegedly not received at their factory. In the first case, the Commissioner found that the appellants availed Cenvat credit of Rs. 77,51,061/- on imported inputs not received. In the second case, the demand was Rs. 1,79,45,801/- for indigenous inputs. Penalties were imposed under Section 11AC of the Central Excise Act, 1944, and Rule 25 of the Central Excise Rules.

2. Principles of natural justice and denial of cross-examination:
The appellants contended that the principles of natural justice were violated as their requests for cross-examination of transporters and other involved persons were denied without valid reasons. The Commissioner rejected the cross-examination requests, arguing that the statements were not retracted and inculpatory statements were recorded from the Director and employees. The Tribunal noted that the appellants had not specified the names of persons for cross-examination in their letter dated 9-10-2008, and the Commissioner provided detailed reasoning for rejecting cross-examination in the second case.

3. Requirement of pre-deposit for hearing the appeal:
The Tribunal considered the financial hardship claimed by the appellants, noting that the company had been referred to BIFR but had not submitted the latest balance sheet and annual return. The Tribunal referenced the Gujarat High Court's decision in Navpad Textile Industries Limited v. UOI, which upheld a pre-deposit requirement despite financial hardship claims. Consequently, the Tribunal ordered a pre-deposit of Rs. 40 Lakhs in the first case and Rs. 90 Lakhs in the second case.

4. Adequacy and sufficiency of evidence based on statements:
The Tribunal examined the evidence presented by the Revenue, which included statements from CHA, transporters, and other parties. The Tribunal found that the evidence was not solely based on statements but also on detailed investigation and corroborative documents. However, the dissenting opinion emphasized that the evidence relied heavily on statements and that cross-examination was essential to test their veracity.

5. Remand for fresh consideration:
The dissenting member argued that the denial of cross-examination and the lack of personal hearing constituted a violation of the principles of natural justice, warranting a remand for fresh consideration. The majority decision, concurring with the dissenting member, concluded that the matter should be remanded for fresh consideration after following the principles of natural justice.

Separate Judgments Delivered:
The Tribunal delivered a split judgment. The majority decision, concurring with the dissenting member, allowed the stay petitions and remanded the matter for fresh consideration, emphasizing the need to follow the principles of natural justice and allow cross-examination of the involved persons. The dissenting member highlighted the importance of cross-examination and personal hearing, arguing that the denial of these rights violated the principles of natural justice.

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