2012 (8) TMI 443 - AT - Central Excise

Violation of the principles of natural justice - alleged wrong availment of cenvat credit since inputs received indicated in specified invoices were never received - assessee contending that the entire case of the Revenue is based upon the statements of four brokers who were not issued any SCN for imposition of penalty under Rule 26 nor they were made an accused in any proceedings, also no opportunity being given of cross-examination of the said brokers - Held that - This seems an incorrect proposition of law, as when the appellant has submitted that the main supplier has factory to manufacture and clear the inputs on payment of duty and the goods have been transported through road to the factory, than the only evidence available with the department is the statements of the brokers who are third party and they need to be examined or cross-examined for testing the veracity of the statements. Accordingly, impugned order is set aside and matter remanded back to the adjudicating authority to reconsider the issue afresh and also producing the four brokers for cross-examination.

Issues:
1. Denial of cenvat credit based on paper transactions.
2. Imposition of penalties on the firm and proprietor.
3. Granting facility to deposit 25% of duty as penalty.
4. Cross-examination of witnesses and violation of natural justice.

Issue 1: Denial of cenvat credit based on paper transactions

The case involved a show cause notice issued to the appellant, alleging that cenvat credit was availed on specific invoices without receiving the actual inputs, leading to a paper transaction. The Directorate of Central Excise Intelligence conducted an investigation, and the appellant contested the notice before the adjudicating authority. The authority confirmed the demands, interest, and penalties, which were partially modified by the Commissioner (Appeals). The main argument revolved around the reliance on statements of brokers without providing an opportunity for cross-examination, leading to a violation of natural justice.

Issue 2: Imposition of penalties on the firm and proprietor

The Revenue's appeal challenged the order allowing the facility to deposit 25% of the duty as penalty and dropping the penalty on the proprietor of the firm. The arguments presented highlighted the need for penalties on both the firm and the proprietor, citing legal precedents to support this stance. The Tribunal considered various case laws and arguments from both sides regarding the imposition of penalties and the role of the proprietor in such cases.

Issue 3: Granting facility to deposit 25% of duty as penalty

The dispute also encompassed the decision to allow the deposit of 25% of the duty as a penalty under Section 11AC. The Tribunal examined the arguments presented by both parties and reviewed the relevant sections of the law to determine the appropriateness of this facility. The issue of penalties and their calculation was crucial in this aspect of the judgment.

Issue 4: Cross-examination of witnesses and violation of natural justice

A significant aspect of the case involved the denial of cross-examination of witnesses, particularly the brokers whose statements formed a substantial basis for the case against the appellant. The appellant contended that the lack of cross-examination amounted to a violation of natural justice. The Tribunal analyzed the adjudicating authority's reasoning and legal precedents cited by both sides to determine the necessity and implications of cross-examination in such circumstances.

In a detailed analysis, the Tribunal found that the denial of cross-examination of witnesses, specifically the brokers, raised concerns regarding the violation of natural justice. The adjudicating authority's reasoning was scrutinized, and discrepancies in labeling the brokers as co-accused were noted. The Tribunal concluded that the impugned order was liable to be set aside on this basis alone. Consequently, the matter was remanded back to the adjudicating authority for a fresh consideration, emphasizing the importance of granting an opportunity for cross-examination to ensure fairness and the testing of witness statements. The appeals were disposed of by way of remand, keeping all issues open for further examination.

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