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TMI Blog2014 (9) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Cenvat Credit Rules, 2004. The raw materials used by the appellant for manufacture of various diesel engine parts are pig iron, H.B. wire, CR. Coils, C.R. Strips, M.S. Rounds, etc. According to the appellant, during the period of dispute, they were producing the raw materials from 14 suppliers viz. M/s. Super Star Industries, M/s.Shivam Enterprises, M/s. Marwaha Trading Company, M/s. Prestige Trading, M/s. Naveen Wires, M/s. Allied Steels, M/s. Ess Ess Steel Casting & Rolling Mills, M/s. Atma Ram Mills Steels Pvt. Ltd., M/s. Hinkan Export, M/s. Deep Tools, M/s. Walia Marketing, M/s. Shiv Shakti Engineering, M/s. Puja Sales Corporation and M/s. Jaldhara Small Tools Pvt. Ltd. and according to the appellant, these raw materials were being transported from the suppliers premises to the premises of PMS by using the services of the transporters viz. M/s. Gupta Transporters, M/s. Dashmesh, Batala, M/s. Diamond Road Links, Batala, M/s. Kaliga Transport Corpn., Batala and M/s. Baba Deep Singh Company, Batala. The PMS were taking cenvat credit of the raw materials received from the 14 suppliers mentioned above and according to them, they were sending the raw materials as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector, Shri Surjit Sehdev and 24 job workers including M/s. Diamond Products, M/s. Rajesh Products, M/s. Jheeta Industries, M/s. Kalia Gears, M/s. Kalia Industgries, Shri Radha Steel Works, M/s. K. K. Engineers, M/s. Doaba Foundary and M/s. United Engineers for- (a) Recovery of wrongly taken cenvat credit amounting to Rs.Rs.2,69,03,334/- from PMS under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A(1) of the Central Excise Act, 2004 along with interest thereon under Section 11 AB ibid, (b) Imposition of penalty under Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 on PMS; and (c) Imposition of penalty under Rule 26 of the Central Excise Rules, 2002 read with Rule 15 of the Central Excise Rules, 2004 on the 24 job workers including M/s. Diamond Products, M/s. Rajesh Products, M/s Jheeta Industries, M/s. Shri Radha Steel Works Industries, M/s. Kalia Gears, M/s. Kalia Industries, Doaba Factory, M/s. United Engineers and M/s. K.K. Engineers and also on Shri Surjit Kumar Sahdev, Managing Director of the PMS. 1.4 The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 5.3.2013 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to locate their premises, it cannot be concluded that they are bogus entities, that the appellant had sought cross examination of the job workers, whose statement have been used by the department against PMS, that in para-3.1 of the impugned order-in-original, it has been recorded that PMS vide their letter dated 13.09.2011 had sought cross examination of the 21out of the 24 job workers and seven transporters, that the cross examination of these persons was wrongly disallowed by the Commissioner on the ground that the same would be an exercise in and would delay the adjudication endlessly, is totally wrong. That denial of cross examination of the transporters and the job workers has resulted in denial of natural justice which has vitiated these proceedings and that on this ground itself, the impugned order would not be sustainable. He, therefore, pleaded that the impugned order is not sustainable. 5. Shri Amresh Jain, ld. DR defended the impugned order by reiterating the findings of the Commissioner and pleaded that all the 24 job workers including M/s. Diamond Products India, M/s. Rajesh Products, M/s. Jheeta Industries, Shri Rajesh Steel Works, M/s. Kalia Industries, Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c press machine in the factory premises of PMS which were required to complete the manufacturing process of diesel engine parts, that all these evidence shows that the transactions of PMS with raw materials suppliers and also their transactions with the job workers are bogus transactions, the documents regarding these transactions have been fabricated to fraudulently avail the Cenvat credit, which was used to show payment of duty on the diesel engine parts on cheap diesel engine parts purchased from the market, which were exported under rebate claim. He, therefore, pleaded that there is no infirmity in the impugned order. 6. In rejoinder, Shri Kamaljeet Singh and Shri S. Malhotra, Advocates, pleaded that as regards the allegation that some non-transport vehicles like two wheelers, and Maruti Cars are shown to have been used for transport of the raw materials from raw materials suppliers to the premises of the PMS, though the appellant had requested the department to furnish copies of the relevant reports from the RTO office, but the same have not been supplied. They also pleaded that substantial quantity of pig iron had been sent to the job workers for manufacture of the castings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence under this Act, the truth of the facts which it contained, when the person who had made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. The circumstances in which this examination and cross examination can be waived are specified in Clause (a) of Section 9 D (1) and these circumstances are that the person who had made the statement is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable Sub-section (2) of Section 9 D provides that - the provisions of sub-section (1) shall, sofar as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. In view of the provisions of sub-section (2) of Section 9 D, the provisions of sub-section (1) of Section 9 D are applicable to the adjudication proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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