2015 (11) TMI 1468 - AT - Central Excise

Restoration of appeal - Waiver of pre deposit - Appeal dismissed for non compliance with pre deposit order - Section 35F - Held that - entries in the documents recovered from Sh. Gopal Krishan Agarwal also mentioned the vehicle number in which the goods had been transported and also the names of the customers but admittedly neither any inquiry had been conducted with the transporters nor any inquiry had been conducted with the consignees/customers. In follow up action, the factories of the appellant company had also not been searched and except for calling for the certain documents and recording of statements of their employees no other inquiries have been conducted. Statements of the Directors of the appellant companies have also not been recorded. - The most important part of section 9D which is relevant for the adjudication proceedings is sub section 2 according to which the provisions of sub section 1 shall, so far as may be, apply in relation to any proceedings under this act, other than proceedings before a court, as they apply in relation to a proceedings before a court. Thus the provisions of sub section (1) of section 9D which are applicable for prosecution proceedings before a court, by virtue of sub section 2 of section 9D, have to be applied as far as possible in respect of adjudication proceedings also. The word so far as may be used in sub section 2 indicate that while the provisions of sub section 1 may not be mandatorily applied to adjudication proceedings but the same have to be applied as far as possible. In our view, when the case against an assessee is based only on the statements of a third party or the documents recovered from him, his cross examination would be necessary. There is gross violation of the principles of natural justice and hence, the appellants would have prima facie case in their favour. In view of this, the requirement of pre-deposit of duty demand, interest and penalty by the appellant company is waived for hearing of their appeals and recovery thereof is stayed - Stay granted.

Issues Involved:
1. Demand of central excise duty based on documents recovered from a third party.
2. Denial of cross-examination of the third party by the Commissioner.
3. Dismissal of appeals due to non-compliance with pre-deposit orders.
4. Restoration of appeals and modification of stay orders due to changes in the law regarding waiver of pre-deposit.

Detailed Analysis:

1. Demand of Central Excise Duty Based on Documents Recovered from a Third Party:
The appellants, manufacturers of sponge iron, were issued SCNs for recovery of duty based on documents recovered from a commission agent, Sh. Gopal Krishan Agarwal of M/s Gopal Steel. The documents indicated sales transactions of sponge iron without corresponding central excise invoices or with discrepancies in the invoiced amounts. The Commissioner confirmed the duty demands of Rs. 92,28,282/- and Rs. 38,78,739/- against the appellants along with interest and penalties under section 11AC.

2. Denial of Cross-Examination of the Third Party by the Commissioner:
The appellants argued that the duty demands were based solely on entries in documents recovered from Sh. Gopal Krishan Agarwal and his statement. They requested cross-examination of Sh. Gopal Krishan Agarwal, which was denied by the Commissioner. The Tribunal noted that no inquiries were conducted with transporters or consignees mentioned in the documents, and the appellants' premises were not searched. The Tribunal cited the Supreme Court judgment in Kishinchand Chellaram vs CIT and other precedents, emphasizing the necessity of cross-examination when the case is based on third-party documents.

3. Dismissal of Appeals Due to Non-Compliance with Pre-Deposit Orders:
The Tribunal had earlier ordered the appellants to pre-deposit Rs. 80 Lakh and Rs. 30 Lakh, respectively, which they failed to do, leading to the dismissal of their appeals. The appellants' subsequent appeals to the Hon'ble Chhattisgarh High Court were dismissed as withdrawn since the Tribunal had already dismissed the appeals.

4. Restoration of Appeals and Modification of Stay Orders Due to Changes in the Law Regarding Waiver of Pre-Deposit:
Following the High Court's order, which allowed the appellants to approach the Tribunal for restoration of appeals due to amendments in the law regarding waiver of pre-deposit, the appellants filed applications for restoration and modification of the stay order. The Tribunal acknowledged the gross violation of principles of natural justice and found that the stay order dated 11.07.2014 suffered from a mistake apparent from the record, as it did not consider the provisions of section 9D(2) or the Supreme Court judgment in Kishinchand Chellaram vs CIT. Consequently, the Tribunal waived the requirement of pre-deposit, modified the stay order, recalled the final order dated 15.09.2014, and restored the appeals to their original numbers.

Conclusion:
The Tribunal allowed the miscellaneous applications for restoration of appeals and modification of the stay order, emphasizing the necessity of cross-examination in cases based on third-party documents and recognizing the appellants' prima facie case. The appeals were restored, and the requirement of pre-deposit was waived.

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