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TMI Blog2011 (3) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... em to offer the said deponents for cross examination so as to check the veracity of the same. Such statements of the transporters and other persons were being disputed by the appellant and having produced material evidence on record to doubt the truthfulness of the same, the Revenue was duty bound to offer the said witnesses for cross examination. It is also seen that the adjudicating authority has not taken into account those statements which are not inculpatory and do not admit any divergence of raw materials. As all the evidences in the shape of expert opinion, evidences showing alternative routes and information procured by the appellant under RTI Act, as placed before Commissioner vide their subsequent reply dt.18.12.07, does not stand considered by the adjudicating authority, we think it proper and just to set aside the impugned order and remand the matter to adjudicating authority for fresh decision - appeals are, thus, allowed by way of remand. - E/286-295, 302, 304-309/2008 - - - Dated:- 22-3-2011 - Mrs. Archana Wadhwa, Dr. P. Babu, JJ. Shri Hardik Modh, Adv.for Assessee. Shri J.S. Negi, SDR for the Revenue. Per: Archana Wadhwa: The presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned regarding issuance of lorry receipts; indicating thereby that such lorry receipts issued by the transporter were not in the ordinary course of their business. Further, reliance has also been placed upon the records maintained by the appellants in support of the findings that imported copper ingots were neither received by them nor consumed inasmuch as during the days when such ingots were received, melting furnaces records indicate that furnaces were shut down/slowed down due to unavailability of raw materials. Further, the statements of various persons stand relied upon. Part of the demand also stands confirmed on the allegations and findings of clandestine manufacture of final product. 4. As against the above, appellants have strongly contended that the impugned order passed by Commissioner is based upon presumptions and assumptions inasmuch as the duty paid raw material stands received by them, recorded in their CENVAT account and duly utilized in the manufacture of their final product, which was cleared on payment of duty. The Revenue has relied upon flimsy evidences of non-stamping of LRs at the check posts, which enquiries are unreliable inasmuch as all entry point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.Advocate also submits that the statements relied upon by the adjudicating authority do not inspire confidence in the Revenue s case and in most of the cases and they were either retracted or were given by the persons who were not even having knowledge about the manufacturing activity at the factory and were looking marketing or other areas and were located at Ahmedabad. The statements of Shri R.V. Mehta, who according to the Department, master minded the entire fraud are exculpatory and he has nowhere admitted any diversion of imported ingots in the market and substitution of the same by scrap. The appellants have made a strong grievance of the fact that they have requested for cross examination of the witnesses, whose statements were relied upon in the Show Cause Notice and have submitted before the adjudicating authority at the time of preliminary hearing that detailed submissions would be filed by them after completing the cross examination of witnesses and after supply of some of the documents. The impugned orders stand passed by the Commissioner by denying the opportunity of cross examination and without dealing with the submissions made by them vide their letter dt.18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural justice. The appellants, right from the beginning, have been making a prayer to allow cross examination of the witnesses, whose statements are being relied upon by the Revenue to support their allegations. The appellants also prayed for personal hearing and made a request to allow cross examination after which they would file a detailed reply. In our views, if Revenue seeks to rely upon the statements of various persons, it is necessary for them to offer the said deponents for cross examination so as to check the veracity of the same. Such statements of the transporters and other persons were being disputed by the appellant and having produced material evidence on record to doubt the truthfulness of the same, the Revenue was duty bound to offer the said witnesses for cross examination. It is also seen that the adjudicating authority has not taken into account those statements which are not inculpatory and do not admit any divergence of raw materials. Inasmuch as the Revenue s case is based upon the non-entry of transportation truck at the check post, the evidences produced by the appellant in their reply dt.18.12.07, relating to the information received under RTI Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p to the factory premises had also been disputed. It is in these circumstances that the respondent had sought for cross examination of the witnesses on whose statements the appellant wanted to rely against the respondent; as well as the panchas and officers who had drawn the panchnama and conducted the search proceedings. In the circumstances, the action of adjudicating authority in refusing to allow the respondent to cross-examine the said witnesses would seriously prejudice the defence of the respondent and as such is undoubtedly violative of the principles of natural justice. Moreover, a perusal of the grounds for denying the respondent the opportunity to cross examine the witnesses makes it apparent that the adjudicating authority has cursorily brushed aside the request on irrelevant grounds stating reasons which are neither any valid nor germane. In the circumstances, the Commissioner (Appeals) was justified in following the order made by the Tribunal in proceedings arising out of the parent show-cause notice and setting aside the order made by the adjudicating authority and remanding the matter for a fresh decision after affording the respondent an opportunity to cross-examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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