2018 (8) TMI 74 - AT - Central Excise

CENVAT credit - fake invoices - raw material not received in the factory - it was alleged that they have not received the quantity of inputs mentioned in seven invoices but availed paper credit of the duty amount shown on these invoices - the entire case is based on statements of witnesses - denial of cross-examination - Held that - The matter was remanded to the adjudicating authority for fresh adjudication after setting aside the order - Initiating the process of adjudication afresh includes allowing the examination and scrutiny of the evidence on record and also cross-examination of the witnesses - However, from the list of witnesses, there is no justification in the request of the appellant to cross-examine the officers, participated in investigation. Thus, the appellants be allowed cross-examination of the witnesses, whose statements were relied upon by the adjudicating authority in passing the impugned order. The appellants be allowed cross-examination of the witnesses, whose statements were relied upon by the adjudicating authority in passing the impugned order - appeal allowed by way of remand.

Summary

Issues:
1. Failure to interpret remand order correctly by the adjudicating authority.
2. Denial of cross-examination of witnesses.
3. Justification for cross-examination of officers involved in the investigation.

Analysis:
1. The appeals were filed against an Order-in-Appeal passed by the Commissioner of Central Excise. The appellants availed CENVAT Credit on input invoices where the raw material description differed from what was considered, leading to a demand for reversal of credit, interest, and penalty. The Tribunal remanded the case for fresh adjudication as the adjudicating authority failed to address all raised issues. Upon de novo adjudication, the demand, interest, and penalty were confirmed, leading to further appeals before the Commissioner (Appeals) and subsequently to the Tribunal.

2. The appellant argued that the adjudicating authority failed to interpret the remand order correctly, denying cross-examination of witnesses crucial to their defense. The appellant cited the Swadeshi Polytex Ltd. case to support the necessity of cross-examination for a complete defense. The Revenue contended that since the issue was not raised in the initial litigation, it could not be entertained in de novo adjudication. The Revenue referenced the Manidhari Stainless Wire Pvt. Ltd. case to argue against the necessity of cross-examination as a right. However, the Revenue acknowledged the reliance on witness statements during the investigation.

3. The Tribunal found that the case hinged on witness statements, necessitating cross-examination for verifying the evidence. While no specific direction was given in the remand order, it was noted that fresh adjudication entails examining evidence and allowing cross-examination. The Tribunal deemed it necessary for the appellants to cross-examine witnesses whose statements were pivotal in the adjudicating authority's decision. However, the request to cross-examine investigating officers was deemed unjustified. Consequently, the impugned order was set aside, and the matter was remanded for fresh adjudication, permitting cross-examination of relevant witnesses to ensure a fair process.

In conclusion, the appeals were allowed by remanding the case for fresh adjudication with the directive to allow cross-examination of witnesses crucial to the case, as per the principles of natural justice.