2021 (8) TMI 299 - AT - Central Excise

CENVAT Credit - Bogus firms - fraudulent Cenvat Credit passing chain to facilitate availment of Cenvat Credit without actual manufacture and supply of duty paid goods - validity of statements relied upon - cross-examination of witnesses - violation of principles of natural justice - HELD THAT - The basic information as was received by the Department was against M/s. High Tides Infra Pvt. Ltd. Various other co-noticees have been served with the Show Cause Notice based upon the statements recorded during investigation. The most relied statement is that of Pradeep Aggarwal, Proprietor of M/s. Subh Multi Trade Co. Pvt. Ltd. as was initially recorded on 01.10.2015 and subsequently on 19.02.2016 which was recorded before DGCI. The data as was received from his premises vide Panchnama dated 09.05.2015 has also been heavily relied upon by the Department. Retraction of statements - HELD THAT - The admitted fact remains is that these statements and the data amounts to a third party evidence. Another fact admittedly is that the appellant craved for leave to cross-examine these witnesses but the request was turned down on the ground that the statements of the witnesses were voluntary and have not been retracted - the reason for denying cross-examination is not justified. Cross-examination is a most relevant tool of justice delivery system so as to undo the bias, if any. It is otherwise a statutory mandate flowing from Section 9D of Central Excise Act, 1944. The document recovered from the appellant premises shows that the appellant had maintained a record about the invoices received from various companies whereupon the appellant has availed the Cenvat Credit. Merely because the company issuing invoice was found non-existent, the appellant could not be denied the availment of Cenvat Credit thereupon unless and until his involvement in terms of his knowledge about such non-existence and about the invoice to be bogus is not proved on record. Otherwise also there is no denial that the appellant has cleared his final product on payment of duty - In such circumstances and that the invoices were containing all the particulars as are required un Rule 9 of Cenvat Credit Rules and that the appellant was also making the record of all those details. The allegations based on the statements given by other manufacturers, first or second stage dealers or even by the transporters cannot be read against the appellant. The order under challenge is held to be passed in violation of statutory principles as that of principles of natural justice. The order is also held to be absolutely presumptive having been passed without appreciation of evidence produced by the appellant, but by relying upon the third party evidence - Appeal allowed.

Issues Involved:
1. Violation of principles of natural justice.
2. Reliance on third-party evidence.
3. Denial of cross-examination.
4. Evidentiary value of third-party statements.
5. Compliance with Section 9D of the Central Excise Act, 1944.
6. Allegation of availing improper Cenvat Credit.
7. Burden of proof for physical receipt of goods.

Issue-wise Detailed Analysis:

1. Violation of principles of natural justice:
The appellant argued that the order should be set aside due to violations of natural justice principles, as they were not given a proper opportunity to defend their case. Specifically, their request to cross-examine witnesses was rejected without any cogent reason, and the documents recovered from their premises were not relied upon. The statements of third parties were wrongly used against the appellants without allowing cross-examination.

2. Reliance on third-party evidence:
The Department's case heavily relied on statements and data from third parties, including Pradeep Aggarwal and Pankaj Aggarwal. The appellant contended that these third-party statements and data should not be used against them without proper cross-examination, as mandated by Section 9D of the Central Excise Act, 1944.

3. Denial of cross-examination:
The appellant's request to cross-examine witnesses was denied on the grounds that the statements were voluntary and not retracted. However, the Tribunal opined that denying cross-examination was unjustified, emphasizing that cross-examination is a crucial tool in the justice delivery system to ensure fairness and eliminate bias.

4. Evidentiary value of third-party statements:
The Tribunal noted that reliance on third-party evidence without corroborative evidence is not sufficient. Citing various judgments, including those from the Hon'ble High Court of Punjab & Haryana and the Tribunal, it was established that third-party documents alone cannot substantiate charges of clandestine removal without concrete evidence of actual manufacture and removal of goods.

5. Compliance with Section 9D of the Central Excise Act, 1944:
The Tribunal highlighted that compliance with Section 9D is mandatory. This section stipulates that statements made before a Central Excise Officer are relevant only if the person who made the statement is unavailable or if the person is examined as a witness and the court deems it necessary to admit the statement in the interest of justice. The Tribunal found that this compliance was not met in the present case.

6. Allegation of availing improper Cenvat Credit:
The Department alleged that the appellant availed improper Cenvat Credit amounting to ?21,46,418/- based on fake invoices from non-existent firms. However, the Tribunal observed that the appellant had maintained records of invoices and made payments as shown in those invoices. The Tribunal found no evidence proving the appellant's knowledge of the non-existence of the firms or the bogus nature of the invoices.

7. Burden of proof for physical receipt of goods:
The Tribunal referred to previous judgments, emphasizing that the burden of proof lies on the Revenue to show that transactions were merely on paper and that goods were not physically received. The Tribunal noted that the appellant had complied with Rule 9 of the Cenvat Credit Rules, 2004, by maintaining proper records and making payments. The Tribunal concluded that the Revenue failed to provide sufficient evidence to prove that the transactions were not genuine.

Conclusion:
The Tribunal set aside the order under challenge, holding it to be in violation of statutory principles and based on presumptive reasoning without proper appreciation of evidence. The appeal was allowed, emphasizing the necessity of adhering to principles of natural justice and proper evidentiary standards. The Tribunal also highlighted the importance of cross-examination and compliance with Section 9D of the Central Excise Act, 1944.

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