2018 (3) TMI 254 - AT - Central Excise

Clandestine removal - opportunity of cross-examination not provided - Held that - clandestine removal is a very serious charge which requires corroborative evidence. In the instant case, the 10 buyers who have made the statement were not cross examined by the appellant though summons were issued. Prima facie this is a violation of the principles of natural justice especially when the statements were extended to all the 120 buyers. Matter remanded to the original authority to provide the opportunity of cross examination - appeal allowed by way of remand.

Summary

Issues:
Appeal against Order-in-Original NO. 13/2015 dated 28/10/2015 - Violation of natural justice in cross-examination of buyers - Clandestine removal case based on seized material - Corroborative evidence requirement - Reliance on statements without cross-examination - Adjudicating authority's discretion under Section 9D of Central Excise Act, 1944.

Analysis:
The case involved an appeal against Order-in-Original NO. 13/2015 dated 28/10/2015 concerning the appellant's engagement in manufacturing PVC Insulated Wires and Cables of copper and aluminum. During a search at the factory and residential premises, loose slips, diaries, ledgers, and notebooks were seized, leading to a case of clandestine removal and duty demand. The appellant challenged the order, alleging a violation of natural justice as buyers' statements were not cross-examined, contrary to Section 9D of the Central Excise Act, 1944.

The appellant's counsel argued that the entries in seized documents were not corroborated, and the order was unsustainable due to presumptive extension of statements from 10 buyers to 120 buyers. On the other hand, the Revenue's counsel justified the order, citing admissions by the appellant's signatory and statements from buyers and transporters supporting clandestine removal allegations.

After hearing arguments, the Tribunal opined that clandestine removal was evident from decoded entries, but emphasized the need for corroborative evidence. Notably, the failure to cross-examine the 10 buyers, despite summons, was deemed a violation of natural justice. Referring to the Punjab and Haryana High Court's ruling, the Tribunal highlighted the importance of Section 9D's provisions and the adjudicating authority's discretion in relying on statements as evidence.

In a significant decision, the Tribunal set aside the impugned order and remanded the matter for cross-examination opportunities. Emphasizing cooperation from buyers and the appellant, the Tribunal stressed the legal process's adherence. The case was remanded for de novo adjudication, allowing the appeals by way of remand, ensuring compliance with procedural fairness and legal requirements under the Central Excise Act, 1944.