2017 (5) TMI 1248 - AT - Central Excise

Clandestine manufacture and removal - MODVAT Credit - shortage of stock - Electric Cord/Lead having use of Braiding Thread, Rubber, Copper Wire and 3 Pin Plug, are also used with an Electric Iron - job-work - the adjudication proceedings leading to the demand of duty on allegation of clandestine removal is built upon the shortage noticed in various items, in particular that of braded thread. Held that - before the adjudicating authority can admit the statement of any witness as evidence, the same has to be done only after summoning the makers of the statement and after examining each witness. After that the witnesses should be offered for cross examination. In the present case, we note that this is a serious lacuna in the adjudication process adopted by the learned Commissioner. The requirement of cross examination becomes even more significant in the light of the fact that every witness whose statement has been recorded has retracted them soon thereafter. Appeal allowed by way of remand.

Summary

Issues Involved:
1. Demand of ?14,96,424/- for the alleged shortage of raw materials.
2. Demand of ?3,06,95,210/- for the alleged clandestine manufacture and clearance of 84,32,750 electrical cords.
3. Denial of cross-examination of witnesses by the adjudicating authority.
4. Penalty imposed on various individuals including Sh. Lalit Babbar.

Issue-wise Detailed Analysis:

1. Demand of ?14,96,424/- for the alleged shortage of raw materials:
The demand for ?14,96,424/- was based on the alleged shortage of raw materials valued at ?93,52,653/- found during stock-taking in June 2003. The appellant challenged the correctness of the stock-taking process, arguing that the method used to determine the shortage was neither legal nor proper. They contended that the value of materials lying at different stages of production was arbitrarily fixed, and the deduction of 10% for pre and post-manufacturing expenses was not substantiated. The appellant also highlighted the self-contradiction in the Show Cause Notice, which alleged both the utilization of the short materials in clandestine manufacture and their clandestine removal. The Tribunal noted that the stock-taking was challenged, and the appellant sought cross-examination of witnesses involved in the stock-taking process, which was denied by the adjudicating authority.

2. Demand of ?3,06,95,210/- for the alleged clandestine manufacture and clearance of 84,32,750 electrical cords:
The demand for ?3,06,95,210/- was based on the alleged clandestine manufacture and clearance of 84,32,750 electrical cords valued at ?19,18,47,063/-. The allegation was primarily supported by the shortage of braided thread found during stock-taking. The Revenue estimated that 20 grams of braided thread were required per electrical cord, leading to the conclusion that the shortage of 1,68,655 kgs of braided thread indicated the clandestine manufacture of 84,32,750 electrical cords. The appellant argued that there was no evidence of clandestine manufacture or clearance, and the entire case was built on presumptions and surmises. They also contended that the trading activity in braided thread was genuine and not a cover for clandestine manufacture.

3. Denial of cross-examination of witnesses by the adjudicating authority:
The appellant challenged the denial of cross-examination of witnesses by the adjudicating authority. They argued that the entire case was based on the statements of witnesses and the Panchnama, and without cross-examination, these statements could not be admitted as evidence. The Tribunal referred to the legal precedent set by the Hon'ble High Court of Punjab and Haryana in the case of Jindal Drugs Pvt. Ltd. vs. Union of India, which emphasized the necessity of cross-examination for statements to be admitted as evidence. The Tribunal noted that the adjudicating authority's failure to allow cross-examination was a serious procedural lapse, especially since all the witnesses had retracted their statements soon after they were recorded.

4. Penalty imposed on various individuals including Sh. Lalit Babbar:
The impugned order imposed penalties on Sh. Lalit Babbar and others under various sections of the Central Excise Act and Rules. The appellant contended that the penalties were arbitrary and based on an unsustainable case built on presumptions and surmises.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for re-adjudication. The adjudicating authority was directed to offer the witnesses for cross-examination and then re-adjudicate the case. The appellant was instructed to provide a list of important witnesses for cross-examination and to cooperate for the speedy disposal of the case. The Tribunal emphasized the importance of adhering to principles of natural justice and ensuring a fair adjudication process.