2018 (5) TMI 295 - AT - Central Excise

Clandestine manufacture and removal - POY - evidences in the form of documents seized from the respondents - cross-examination of witnesses - Held that - neither the examination in chief was done nor cross-examination of witness could be granted to the assessee. Therefore, the statements recorded during the investigation cannot be the basis for adjudication - in the absence of documents available on record, which are the basis for issuance of show cause notice, the proceedings against the respondent are not sustainable - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against dropped proceedings, Compliance with Tribunal's directions, Cross-examination of witnesses, Reliance on statements, Admissibility of statements, Finality of Tribunal's order, Examination in Chief, Cross-examination of witnesses, Original documents traceability.

Analysis:
The judgment pertains to an appeal against the dropped proceedings by the Revenue, marking the second round of litigation. The initial demand of duty against the respondent was based on clandestine manufacturing and clearance of goods without payment of Central Excise duty, supported by various evidences. The matter was adjudicated, confirming the demand and imposing penalties. Upon the respondent's appeal, the Tribunal remanded the case to the adjudicating authority with specific directions. However, the Revenue opted to appeal to the High Court instead of complying with the Tribunal's directions. The High Court dismissed the Revenue's appeal, emphasizing the need for compliance with the Tribunal's remand directions. Subsequently, the adjudicating authority dropped the proceedings, leading to the current appeal by the Revenue.

During the proceedings, the Revenue argued that the Tribunal's direction for cross-examination of witnesses was not fulfilled due to witness unavailability, and since the statements were not retracted, the impugned order should be set aside. Conversely, the respondent's counsel contended that the original records were untraceable, making reliance on documents impossible. The respondent highlighted that the Tribunal's directions were not complied with, and the High Court's order had finalized the Tribunal's decision, rendering the Revenue unable to continue the adjudication process.

The Tribunal reviewed the case, emphasizing the importance of cross-examination of witnesses as per the Tribunal's initial order and the High Court's validation of the same. The admissibility of statements recorded during investigation was crucial, requiring testing through examination in chief and subsequent cross-examination. Citing relevant case laws, the Tribunal noted the necessity of affording the respondent the opportunity for cross-examination, which was not fulfilled in this case. Additionally, the unavailability of original documents essential for certification further weakened the basis for the show cause notice. Consequently, the Tribunal upheld the impugned order, dismissing the Revenue's appeal due to the lack of sustainability of the proceedings against the respondent.

In conclusion, the Tribunal's detailed analysis focused on the failure to comply with the crucial procedural aspects of cross-examination, examination in chief, and the unavailability of essential original documents, leading to the dismissal of the Revenue's appeal and upholding the dropped proceedings against the respondent.