2017 (12) TMI 9 - AT - Central Excise

Clandestine manufacture and removal - Dispersing Agents - denial of cross-examination of witnesses - principles of natural justice - Held that - the witnesses, namely the excise in-charge and the Director of the company, not only they had accepted the existence of the seized records namely, A/24, A/25 and A/26 retrieved from their factory premises but also explained how the said records had been maintained in the factory premises and names of the consignees were entered for accounting purpose only and the total quantity cleared on a single day was recorded in the seized records, vehicle number against the name of the consignee mentioned at the end of the day. Therefore, these evidences cannot be outrightly discarded merely because one of the panch witnesses became hostile. Cross-examination of witnesses - natural justice - Held that - It is settled principle of law that cross-examination of the witness whose statement is relied upon becomes necessary so as to bring out the truth of the fact alleged and denial of cross-examination of the witness is violation of principle of natural justice and such Order cannot be sustained - the matter needs to be remanded to the adjudicating authority with the direction to allow cross-examination of the witnesses as was sought by the Respondent and not allowed during the adjudication proceeding, so as to ascertain the correctness of the allegation of clandestine removal of goods based on such evidences - appeal allowed by way of remand.

Issues Involved:
1. Alleged clandestine manufacture and clearance of goods.
2. Reliability of seized documents and statements.
3. Denial of cross-examination of witnesses.
4. Violation of principles of natural justice.

Detailed Analysis:

Alleged Clandestine Manufacture and Clearance of Goods:
The case revolves around the alleged clandestine manufacture and clearance of Dispersing Agents weighing 561,120 kgs., involving a total duty of ?17,39,921/-. The Respondents were accused of not accounting for these clearances in their official records and evading duty payments. The investigation led to the issuance of a show cause-cum-demand notice based on documents seized during a visit by DGCEI officers.

Reliability of Seized Documents and Statements:
The Revenue's contention was based on documents (A/24, A/25, and A/26) seized from the Respondent's premises, which allegedly showed clearances without payment of duty. The statements of the Excise in-charge, Shri Balbir Singh Nathuram Pilania, and the Director, Shri Yogesh Gupta, corroborated the existence and contents of these documents. Both individuals admitted that the entries in the seized records pertained to the manufacture and clearance of dispersing agents without duty payment.

The Respondent argued that these documents were unreliable as one of the panch witnesses turned hostile, and the cross-examination of other witnesses was not permitted. The Commissioner (Appeals) had set aside the demand, citing the potential planting of documents by a business rival and lack of corroborative evidence.

Denial of Cross-Examination of Witnesses:
The Respondent had requested the cross-examination of several witnesses, including the Excise in-charge and the Director. However, the adjudicating authority allowed the cross-examination of only one witness. The Revenue argued that this denial of cross-examination should not invalidate the demand, while the Respondent claimed it violated principles of natural justice.

Violation of Principles of Natural Justice:
The Tribunal highlighted the importance of cross-examination in establishing the reliability of evidence. It noted that the denial of cross-examination constitutes a violation of natural justice principles, making the order unsustainable. The Tribunal agreed with the Revenue that the Commissioner (Appeals) should have directed cross-examination to ascertain the truth of the allegations.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority. It directed that the cross-examination of witnesses, as requested by the Respondent, should be allowed to determine the correctness of the allegations of clandestine removal of goods. The Tribunal emphasized the necessity of adhering to principles of natural justice and providing a reasonable opportunity of hearing to the Respondent. All issues were kept open for reconsideration by the adjudicating authority. The appeal was allowed by way of remand.

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