2016 (7) TMI 153 - AT - Central Excise

Cenvat Credit - availing credit without receipt of goods - It was also alleged in the show cause notice that the appellant had diverted the said inputs with the help of transporters and utilized the cenvat credit - Held that - Admittedly non relied upon documents have supplied after final hearing of the case. In the circumstances the impugned order has been passed in gross violation of principles of natural justice. - Further the adjudicating authority has not given an opportunity of cross examination of witness. Order set aside - matter remanded back to the adjudicating authority - The adjudicating authority shall be at liberty if so desire to re-adjudicate the matter after following the procedure laid down under section 9D of the Act as discussed above and following the principles of natural justice. - Decided in favor of assessee.

Issues Involved:

1. Non-supply of non-relied upon documents before adjudication.
2. Lack of opportunity for personal hearing.
3. Denial of cross-examination of witnesses.
4. Reliance on statements of witnesses without following the procedure under Section 9D of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Non-supply of Non-relied Upon Documents:

The appellants argued that the non-relied upon documents were supplied only after the final hearing, which constituted a gross violation of the principles of natural justice. The tribunal acknowledged this contention, stating, "Admittedly non relied upon documents have supplied after final hearing of the case." This delay in providing essential documents hindered the appellants' ability to prepare a proper defense.

2. Lack of Opportunity for Personal Hearing:

The appellants contended that they were not afforded a sufficient opportunity for a personal hearing. The tribunal found merit in this argument, noting, "as after supplying of non-relied upon documents, no effective personal hearing was given to the appellant, therefore, there is gross violation of principles of natural justice." This failure to provide a meaningful opportunity for the appellants to present their case further compromised the fairness of the adjudication process.

3. Denial of Cross-examination of Witnesses:

The appellants argued that their request for cross-examination of witnesses whose statements were relied upon was unjustly denied. The tribunal agreed, citing precedents such as Basudev/Garg vs CC and J.K. Cigarettes Ltd., which emphasized the importance of cross-examination in ensuring the credibility and reliability of witness statements. The tribunal stated, "the adjudicating authority has not given an opportunity of cross examination of witness, therefore, the same is in violation of principles of natural justice."

4. Reliance on Statements of Witnesses Without Following Section 9D:

The appellants challenged the reliance on statements of third parties without adhering to the procedure outlined in Section 9D of the Central Excise Act, 1944. The tribunal noted that the adjudicating authority failed to follow the prescribed procedure, which requires that the person who made the statement must first be examined as a witness, and only then can the statement be admitted in evidence if deemed necessary in the interest of justice. The tribunal referenced the case of Kuber Tobacco India Ltd., where it was observed that "the procedure prescribed in sub-section (1) of section 9D is required to be scrupulously followed, as much as in adjudication proceedings as in criminal proceedings relating to prosecution."

Conclusion:

The tribunal concluded that the adjudicating authority had not adhered to the principles of natural justice and had failed to follow the procedure laid down under Section 9D of the Central Excise Act, 1944. Consequently, the impugned order was set aside. The tribunal provided the adjudicating authority with the liberty to re-adjudicate the matter, ensuring compliance with Section 9D and the principles of natural justice. The appeals were disposed of accordingly.

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