2018 (9) TMI 742 - AT - Central Excise

MODVAT/CENVAT credit - duty paying invoices - appellant received only invoices and not goods - Held that - It is not in dispute that the show cause notice was issued with sixty seven relied upon documents of which only five are now available with the Department - It is also not in dispute that the cross examination of the persons who made these statements were not allowed by the Adjudicating Authority. It is found from the list of RUDs that the 67 relied upon documents in the show cause notice roughly half are statements made by various persons. The admissibility of the Statements made before Central Excise Officers in any proceeding before a court or in any proceedings other than a court is governed by Section 9D of the Central Excise Act. Hon ble High Court of Punjab & Haryana in the case of Jindal Drugs Pvt. Ltd., 2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT that for any statement made before an Excise Officer to be taken as evidence, we have to follow the above provisions of Rule 9D which has not been done in this case as neither were the persons making the statements examined as required under Section 9D (1)(b) nor was the cross examination allowed - even the statements and other relied upon documents are not available with the Revenue except five of the documents. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Non-supply of relied upon documents
- Cross-examination of witnesses
- Evidence of clandestine removal of goods
- Calculation of demand
- Reliance on statements of violators
- Payments made through banking channel
- Modvat credit and time-barred demand
- Imposition of interest and penalties

Analysis:

Non-supply of relied upon documents:
The case involved two appeals arising from a single impugned order. The appellant contended that they were not provided with copies of relied upon documents, and the Department had only five out of sixty-seven relied upon documents available. The Department claimed that the appellants were given the opportunity to inspect the documents, but they did not show interest. The Tribunal found that lack of access to crucial documents hindered fair adjudication, leading to the impugned order being set aside due to insufficient evidence.

Cross-examination of witnesses:
The Adjudicating Authority did not allow cross-examination of witnesses whose statements were relied upon. The Department argued that since the statements were not retracted, cross-examination was unnecessary. However, the Tribunal highlighted the importance of following Section 9D of the Central Excise Act, emphasizing that statements made before officers must adhere to legal procedures. Failure to allow cross-examination and lack of compliance with evidentiary rules led to the impugned order being overturned.

Evidence of clandestine removal of goods:
The appellant challenged the evidence of clandestine removal, arguing that there was no concrete proof besides calculations. The Department asserted that documentary evidence supported the allegations. However, the Tribunal noted the absence of crucial relied upon documents and lack of substantial evidence, ultimately leading to the impugned order being set aside due to insufficient proof of clandestine activities.

Calculation of demand:
The appellant raised concerns about the accuracy of the demand calculation. The Department defended the calculations based on available evidence. However, without access to all relied upon documents, the Tribunal could not verify the calculations, contributing to the decision to overturn the impugned order.

Reliance on statements of violators:
The appellant objected to the reliance on statements of individuals considered violators of the law. The Department argued that the statements were crucial for the case. However, the Tribunal highlighted the need for proper adherence to evidentiary rules and the importance of verifying statements through legal procedures. Insufficient access to all relied upon documents impacted the credibility of the statements, leading to the impugned order being set aside.

Payments made through banking channel:
The appellant claimed that payments made through the banking channel were not considered in the proceedings. The Tribunal did not delve into this issue extensively due to the primary focus on the lack of evidence and procedural irregularities.

Modvat credit and time-barred demand:
Questions arose regarding Modvat credit and the time-barred nature of the demand. The Tribunal did not provide a detailed analysis of these specific issues in the judgment, as the decision primarily centered on the lack of evidence and procedural flaws leading to the impugned order being overturned.

Imposition of interest and penalties:
The appellant contested the imposition of interest and penalties. The Department supported the penalties based on the findings. However, due to the overarching concerns regarding evidence and procedural shortcomings, the Tribunal set aside the impugned order, impacting the decision on interest and penalties.

In conclusion, the Tribunal's decision to set aside the impugned order was primarily driven by the lack of access to relied upon documents, failure to allow cross-examination of witnesses, and insufficient evidence to support the allegations of clandestine activities. The judgment underscored the importance of adherence to legal procedures and evidentiary rules in ensuring fair adjudication.