2017 (5) TMI 1133 - AT - Central Excise

CENVAT credit - duty paying invoices - the appellants have availed the credit on the invoices without receipt of the goods covered under the said invoices - natural justice - Held that - the entire evidences are of third party i.e. either from the broker dealing in the sale of inputs transporter who transported the goods and the actual recipient of the goods in Gujarat - when the evidences of third party is used against an assessee for deciding confirmation of demand against them it is necessary that the request of cross-examination should accepted - it is very clear that not only on the request of the assessee but even for admission of any statement for relying upon any statement in any case the adjudicating authority is duty bound to first cross-examine the persons whose statement is being relied upon otherwise the said statements cannot be used in deciding the case - matter remanded to the original adjudicating authority for decision afresh - appeal allowed by way of remand.

Summary

Issues:
Fraudulent availment of Cenvat Credit based on third-party evidence, denial of cross-examination request by the appellant, violation of principles of natural justice, relevance of Section 9D of the Central Excise Act, 1944.

Analysis:
The case revolved around the fraudulent availing of Cenvat Credit by the appellants based on invoices issued by M/s. Jindal Iron and Steel Co. Ltd., where the goods were diverted to different locations in Gujarat without receipt by the appellants. The department relied on statements of third parties like transporters and brokers to confirm the demand for Cenvat credit along with penalties. The appellant challenged the order, arguing a lack of admission by any appellant personnel regarding the fraudulent credit and the need for cross-examination of third-party witnesses for natural justice.

The appellant contended that the case was built on third-party evidence, and the denial of the cross-examination request violated principles of natural justice. The appellant highlighted Section 9D of the Central Excise Act, 1944, emphasizing the duty of the adjudicating authority to allow cross-examination for relying on statements in deciding a case. The appellant argued that without cross-examination, the evidence from third parties could not be used to confirm the demand, urging the order to be set aside on this ground.

The Revenue, represented by the Superintendent, defended the decision, citing documentary evidence supporting the non-receipt of goods covered by the invoices, justifying the rejection of the cross-examination request. However, the appellate tribunal, after considering both sides' arguments, emphasized the necessity of cross-examination when relying on third-party evidence against an assessee. Referring to Section 9D, the tribunal ruled that the adjudicating authority must allow cross-examination as a fundamental requirement of natural justice.

Consequently, the tribunal set aside the impugned order and remanded the matter to the original adjudicating authority with a directive to permit cross-examination of witnesses. The tribunal stressed the importance of adhering to principles of natural justice, ensuring the appellants have a fair opportunity to challenge the evidence presented against them. The appeals were disposed of by way of remand, emphasizing the significance of cross-examination in upholding procedural fairness and justice.