2017 (7) TMI 676 - AT - Central Excise

CENVAT credit - imported copper ingots/re-melted wire bars - The case of the department is that appellant have availed Cenvat credit on imported copper ingots/re-melted wire bars without physical receipt of the same - natural justice - Held that - The entire case was made against appellant on the basis of various statements recorded from third persons i.e. seller transporter broker etc. If this is so then it is necessary to allow cross examination of these witnesses to the appellant - As per Section 9(D) of Central Excise Act 1944 it is provided that even if assessee does not ask for cross examination it is obligatory on the part of the adjudicating authority to cross examination the witnesses whose statements being relied upon that means for relying on any statements it is necessary that the adjudicating authority first cross examine the persons whose statements are being relied upon for deciding the case - taking into consideration overall circumstances of the present case it is necessary to allow cross examination of the witnesses as requested for by the appellant - appeal allowed by way of remand.

Summary

Issues involved:
1. Availment of Cenvat credit on imported goods without physical receipt.
2. Denial of cross-examination of witnesses by the adjudicating authority.
3. Upholding of demand of Cenvat credit by the Commissioner(Appeals) based on third-party statements.

Analysis:
1. The appeal challenged the Order-in-Appeal upholding the demand of Cenvat credit due to alleged fraudulent availment by the appellant without physically receiving imported goods. The department contended that although the appellant cleared goods by paying customs duty, they did not physically receive them, leading to the fraudulent availment of credit. The appellant's counsel argued for cross-examination of witnesses whose statements were used against them, emphasizing the lack of confession by the appellant and their consistent claim of receiving and using the goods in production. The Tribunal noted the absence of a confessionary statement by the appellant and the reliance on third-party statements for the case against them. Citing the necessity of cross-examination under Section 9(D) of the Central Excise Act, the Tribunal remanded the matter to the original adjudicating authority for conducting cross-examination, allowing the appellant an opportunity for additional defense before issuing a fresh order.

2. The denial of the appellant's request for cross-examination of witnesses formed a crucial aspect of the appeal. The appellant's counsel highlighted the importance of cross-examination to challenge the evidence presented by third parties, stressing that the case against the appellant was primarily based on such statements. In contrast, the Revenue representative supported the findings of the impugned order, asserting the sufficiency of evidence to confirm the fraudulent availment of Cenvat credit. Despite the Revenue's stance, the Tribunal emphasized the mandatory nature of cross-examination when relying on statements of witnesses, underscoring the appellant's right to challenge the evidence presented against them. The decision to remand the matter for cross-examination aimed to ensure procedural fairness and the appellant's opportunity to address the allegations effectively.

3. The judgment addressed the issue of upholding the demand of Cenvat credit based on third-party statements and evidence. The Commissioner(Appeals) had upheld the demand, considering the evidence presented by various individuals such as sellers, transporters, and brokers. However, the Tribunal scrutinized the lack of a confessionary statement by the appellant and the absence of direct evidence proving fraudulent availment. By emphasizing the need for cross-examination and adherence to procedural requirements under the Central Excise Act, the Tribunal found it imperative to allow the appellant the opportunity to challenge the statements relied upon. The decision to remand the matter underscored the significance of fair procedure and the right to confront and contest evidence crucial to the case.

This detailed analysis of the judgment highlights the procedural and substantive aspects surrounding the appeal concerning the alleged fraudulent availment of Cenvat credit without physical receipt of imported goods and the pivotal role of cross-examination in ensuring a fair adjudication process.