2017 (4) TMI 791 - AT - Central Excise

Shortage of stock - clandestine removal - natural justice - Held that - the adjudicating authority should have extended the cross-examination of the persons whose statements the adjudicating authority is placing reliance hold claim that the main appellant had clandestinely removed goods and the cash which has been recovered from the appellant premises is in respect of sale proceed of the goods removed clandestinely. The reasoning given by the adjudicating authority for denying the cross-examination is not in consonance with the law - adjudicating authority will come to a conclusion after following principles of natural justice - appeal allowed by way of remand.

Summary

Issues:
1. Confiscation of raw material and finished goods, imposition of penalties, and confiscation of cash.
2. Denial of cross-examination of witnesses by the adjudicating authority.
3. Need for remand to the adjudicating authority for reconsideration of issues.

Analysis:

Issue 1: Confiscation of raw material, finished goods, penalties, and cash
The case involved discrepancies found during a visit by Central Excise officers to the premises of the main appellant. The officers discovered a shortage of raw material for which cenvat credit was availed, excess finished goods, and a significant amount of cash. Subsequently, a show cause notice was issued for confiscation, duty demand, and penalties. The adjudicating authority confirmed the demand for raw material shortage, confiscated unaccounted finished goods, imposed penalties on the main appellant, and confiscated the recovered cash. The first appellate authority upheld most aspects but set aside the confiscation of the cash. The Tribunal remanded the matter for further consideration, emphasizing the need for adherence to principles of natural justice.

Issue 2: Denial of cross-examination
The appellant sought to cross-examine individuals whose statements were relied upon by the adjudicating authority to establish clandestine removal of goods. The Tribunal noted that the denial of cross-examination was based on the evidentiary value of a notebook and its entries. However, the Tribunal held that the denial was not in line with established legal principles, citing relevant case law. It emphasized the importance of granting cross-examination rights as per precedents set by various High Courts and the Supreme Court. Consequently, the Tribunal set aside the order-in-original and directed a reconsideration of the matter with proper adherence to the law on cross-examination.

Issue 3: Remand to the adjudicating authority
Given the interlinked nature of the cases and the common evidence involved, the Tribunal ordered a remand to the adjudicating authority for a fresh consideration of the issues. The Tribunal directed the Commissioner, as the adjudicating authority, to reexamine the proceedings related to the show cause notice concerning the shortage of raw material and excess finished goods. It emphasized the necessity of the adjudicating authority reaching conclusions in all matters while adhering to the principles of natural justice. Ultimately, all appeals were disposed of through remand for further proceedings in accordance with the Tribunal's directions.