2023 (10) TMI 1499 - AT - Central Excise

Clandestine removal - demand confirmed mainly on the basis of the consumption of gas required for manufacture of the final product - case is mainly based on statement of various persons - right to cross-examine the statements - principles of natural justice - HELD THAT - The appellant in the reply raised specific issue that certain documents relied upon/non relied upon were not provided to the appellant. The appellant also requested for cross examination of the witnesses whose statements were heavily relied upon to confirm the charge of clandestine removal and consequential demand of Excise duty. It os found from the entire adjudication order the Adjudicating Authority has not given any heed to the request of the appellant in as much as they have specifically asked to provided relied upon/ Non relied upon documents and cross examination of the witnesses. The case is mainly based on statements of various persons. It is statutory mandate in terms of Section 35D of the Central Excise Act 1944 that the Adjudicating Authority that it is incumbent upon the Adjudicating Authority to examine/cross examine the witnesses before accepting the statements of those witnesses as evidence for adjudication of the case. In the present case even despite retraction by the witnesses the adjudicating authority has not granted the cross examination of the witnesses. In this fact the entire order of the Adjudicating Authority based on mainly statements of the various persons without allowing cross examination is not sustainable. The adjudicating authority must allow the cross examination of the witnesses and also provide the documents required by the appellant if not earlier provided. The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore the order without following the principle of natural justice cannot be sustained as held by the Apex Court in number of judgments. Conclusion - The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore the order without following the principle of natural justice cannot be sustained. Matter to the Adjudicating authority for passing a fresh de-novo order - appeal allowed by way of remand.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment include:

• Whether the principles of natural justice were violated by the Adjudicating Authority by not providing the appellant with the relied upon/non-relied upon documents and denying the request for cross-examination of witnesses.
• Whether the demand for Excise Duty based on the alleged clandestine removal of goods, primarily supported by witness statements, can be sustained without allowing cross-examination.
• Whether the adjudication order is sustainable when the statutory mandate under Section 35D of the Central Excise Act, 1944, regarding cross-examination of witnesses, is not fulfilled.

ISSUE-WISE DETAILED ANALYSIS

Violation of Principles of Natural Justice

• Relevant Legal Framework and Precedents: The principles of natural justice require that a party must be given a fair opportunity to present their case, which includes the right to access documents relied upon in the decision-making process and the right to cross-examine witnesses. Section 35D of the Central Excise Act, 1944, mandates cross-examination of witnesses whose statements are used as evidence.
• Court's Interpretation and Reasoning: The Tribunal found that the Adjudicating Authority failed to comply with the principles of natural justice by not providing the appellant with the necessary documents and denying the request for cross-examination. The Tribunal emphasized that the adjudication heavily relied on witness statements, and without cross-examination, these statements could not be considered valid evidence.
• Key Evidence and Findings: The Tribunal noted that the case was primarily based on the statements of various persons, which were not corroborated by allowing cross-examination. This lack of opportunity to challenge the evidence was a significant oversight.
• Application of Law to Facts: The Tribunal applied the principles of natural justice and Section 35D of the Central Excise Act, 1944, to determine that the appellant's rights were violated. The failure to allow cross-examination and provide documents undermined the fairness of the adjudication process.
• Treatment of Competing Arguments: The Tribunal considered the arguments from both sides, with the appellant emphasizing the denial of rights and the revenue supporting the original order. The Tribunal sided with the appellant, highlighting the procedural lapses.
• Conclusions: The Tribunal concluded that the order of the Adjudicating Authority was unsustainable due to the violation of natural justice principles. The failure to allow cross-examination and provide documents necessitated a reconsideration of the case.

Sustainability of Excise Duty Demand

• Relevant Legal Framework and Precedents: The demand for Excise Duty must be substantiated by credible evidence. In cases of alleged clandestine removal, the evidence must be robust and withstand scrutiny, including cross-examination.
• Court's Interpretation and Reasoning: The Tribunal reasoned that without cross-examination, the statements used to support the Excise Duty demand were insufficient. The reliance on unchallenged statements was a critical flaw in the adjudication process.
• Key Evidence and Findings: The Tribunal found that the evidence primarily comprised statements from various individuals, which were not subjected to cross-examination, thereby questioning their reliability.
• Application of Law to Facts: The Tribunal applied the legal requirement for credible evidence to the facts, determining that the lack of cross-examination rendered the evidence inadequate to support the Excise Duty demand.
• Treatment of Competing Arguments: The Tribunal evaluated the appellant's challenge to the evidence and the revenue's defense of the demand. The Tribunal found the appellant's argument compelling due to the procedural deficiencies.
• Conclusions: The Tribunal concluded that the demand for Excise Duty could not be sustained on the basis of the current evidence, necessitating a remand for fresh consideration.

SIGNIFICANT HOLDINGS

• Preserve Verbatim Quotes of Crucial Legal Reasoning: The Tribunal stated, "The adjudicating authority has gravely erred in violating the principles of natural justice. Therefore, the order without following the principle of natural justice cannot be sustained as held by the Apex Court in number of judgments."
• Core Principles Established: The judgment reinforced the necessity of adhering to natural justice principles, particularly the right to cross-examine witnesses and access relevant documents. It highlighted the statutory requirement under Section 35D of the Central Excise Act, 1944, for cross-examination.
• Final Determinations on Each Issue: