2019 (10) TMI 410 - AT - Central Excise

Fraudulent availment of CENVAT Credit - sufficient degree of preponderance about the existence of the alleged fact - Department has not to establish a fact with mathematical procession - denial of opportunity to cross-examination - HELD THAT - The original adjudicating authority has recorded that no request for cross-examination was at all made whereas Commissioner (Appeals) has justified the denial on the ground that the witness who were prayed to be cross-examined, their statements were never retracted rather the proposed demand and the duty liabilities thereof stands already discharged, that too, voluntarily. Law has also been settled that payment of duty under protest does not estoppes the assessee from challenging the illegality. The improved statements of the witnesses without them being cross-examined by the assessee cannot form the basis of confirming the demand against the assessee. Admittedly none of those witnesses are from appellant s company. The evidence otherwise becomes a third party evidence with no cogent corroboration from appellants. Lack of evidence - HELD THAT - Admittedly, no investigation with M/s. Isha Enterprises has ever been done by the Department to this aspect, except recording the statements of both the partners thereof. The admission coming out of from both the said statements is the sole basis to adjudicate against the present appellants. The adjudicating authority has committed an error because the admission of the maker though can be used against the maker thereof but cannot be used against any other person, except after the said other person is provided an opportunity to cross-examine the maker of admission. As already discussed above, no such opportunity was provided. There seems no justification for remanding the matter to grant an opportunity to the appellants to cross-examine those witnesses because there is no other documentary evidence produced on record by the department to rebut the documents of appellants as that of invoices, GRs etc. which have presumption of correctness attached Annexure to show cause notice clarifies that the sole adjudication is based upon the oral testimonies. The order under challenge is passed under ignorance of the documents which already supports the appellant contentions and are sufficient to falsify the allegations of cenvatable invoices being received by appellant without delivery of goods. Appeal allowed.

Summary

Issues:
1. Denial of opportunity for cross-examination of witnesses.
2. Lack of evidence to prove fraudulent availing of cenvat credit.

Issue 1: Denial of opportunity for cross-examination of witnesses:
The judgment pertains to three appeals where the appellants challenged the Order-in-Appeals on the grounds of not being allowed to cross-examine witnesses and lack of evidence. The appellants were accused of fraudulently availing cenvat credit based on invoices without actual delivery of goods. The Adjudicating Authority relied on witness statements and documents seized from a relative's house. The appellants requested cross-examination, which was acknowledged but not granted. The judgment cites legal precedents emphasizing the importance of tangible evidence. The Department argued that the burden of proof lay with the appellants, who failed to discharge it. The judgment highlights the need for concrete evidence to support allegations.

Issue 2: Lack of evidence to prove fraudulent availing of cenvat credit:
The appellants, engaged in manufacturing MS Ingots and MS Bars, were accused of availing cenvat credit fraudulently. The Department alleged that invoices from M/s. Isha Enterprises were used without actual goods delivery. The judgment analyzes previous cases to establish the burden of proof on the Revenue to show non-receipt of inputs. It notes that the absence of Goods Receipts (GRs) does not conclusively prove non-receipt of goods. The appellants provided some GRs, explaining discrepancies in maintaining GRs due to payment methods. The Department did not investigate M/s. Isha Enterprises but relied on partner statements. The judgment criticizes the lack of opportunity for cross-examination and the reliance on oral testimonies without substantial documentary evidence. It concludes that the orders under challenge lack legal scrutiny and sets them aside, allowing the appeals.

The judgment by the Appellate Tribunal CESTAT NEW DELHI addresses issues related to the denial of cross-examination opportunities and the insufficiency of evidence in proving fraudulent availing of cenvat credit. It emphasizes the importance of tangible evidence, burden of proof, and the necessity for concrete proof to support allegations in such cases. The judgment delves into legal precedents and established principles to highlight the flaws in the orders under challenge and ultimately sets them aside, allowing the appeals.