2018 (1) TMI 208 - HC - Central Excise

CENVAT credit - principles of natural justice - denial of cross-examination - where while considering the matter the statement which was recorded of the Foreman whether the assessee is entitled for cross-examination or not while disallowing the CENVAT credit, proprietor of the firm which was considered on the basis of evidence available on record? Held that - the cross-examination is a right of assessee. In this case there is ambiguity in the statement of employee - it is clear that the statement of Foreman requires cross-examination. The matter is remitted back to the Tribunal with a view to have a cross-examination of the Foreman - appeal allowed by way of remand.

Summary

Issues Involved:
1. Whether the statement given by the foreman dated 07.12.2006 can be used against the appellant without affording the opportunity of cross-examination.
2. Disallowance of CENVAT credit of ?10,27,545 based on the foreman's statement and the proprietor's statement without considering corroborative evidence.

Issue-wise Detailed Analysis:

1. Cross-examination of the Foreman:
The appellant challenged the Tribunal's decision on the grounds that the foreman's statement was used against them without an opportunity for cross-examination. The appellant's counsel referred to the first authority's order, noting that the noticee demanded cross-examination of the foreman, which was denied as the foreman was an employee. The Tribunal acknowledged that not allowing cross-examination when the statement is relied upon causes prejudice to the appellant, citing Supreme Court judgments in Dharampal Satyapal Ltd. and CCE Nagpur Vs. Ballprpur Industries. The Tribunal found that the proprietor's un-retracted statements held full evidentiary value, establishing the alleged offense, while the Chartered Engineer Certificate did not cover the relevant period. The High Court, referencing multiple precedents, reaffirmed that cross-examination is a right of the assessee, and ambiguity in the foreman's statement necessitated cross-examination.

2. Disallowance of CENVAT Credit:
The Tribunal's decision to disallow CENVAT credit was based on the proprietor's admission that coils or plates below 10mm thickness were never received in the factory. The appellant's counsel argued that the Tribunal did not consider specific documents and corroborative evidence. The respondent's counsel contended that the proprietor's admission rendered cross-examination of the foreman unnecessary and that the Tribunal's decision was based on evidence from the relevant period (2005-06 to 2006-07). The High Court noted discrepancies between the foreman's and proprietor's statements, highlighting the need for cross-examination to resolve these inconsistencies. The Court remitted the matter back to the Tribunal for cross-examination of the foreman, emphasizing that the issue should not be decided solely on the proprietor's statement without considering corroborative evidence.

Conclusion:
The High Court concluded that the right to cross-examine the foreman was essential for a fair decision, given the discrepancies in the statements. The matter was remitted to the Tribunal for cross-examination, with instructions to decide the case based on the law and available evidence. The appeal was disposed of with these directions.