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TMI Blog2015 (11) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... efore a court, as they apply in relation to a proceedings before a court. Thus the provisions of sub section (1) of section 9D which are applicable for prosecution proceedings before a court, by virtue of sub section 2 of section 9D, have to be applied as far as possible in respect of adjudication proceedings also. The word ‘so far as may be’ used in sub section 2 indicate that while the provisions of sub section 1 may not be mandatorily applied to adjudication proceedings but the same have to be applied as far as possible. In our view, when the case against an assessee is based only on the statements of a third party or the documents recovered from him, his cross examination would be necessary. There is gross violation of the principles of natural justice and hence, the appellants would have prima facie case in their favour. In view of this, the requirement of pre-deposit of duty demand, interest and penalty by the appellant company is waived for hearing of their appeals and recovery thereof is stayed - Stay granted. - Excise Misc Application E/Misc/50497, 50420/2015, Excise ROA Application E/ROA/50581, 50421/2015 & Excise Appeal No. E/58717,58797/2015-Ex[DB] - Misc Order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st both the appellants along with interest and imposed penalty of equal amount on them under section 11AC. Though, in course of adjudication proceedings, the appellant pleaded that the entire duty demands are sought to be confirmed against them only on the basis of the certain entries in the records recovered from the Commission agent Sh. Gopal Krishan Agarwal and his statement and no inquiry has been conducted with the transporters or with the consignees and hence, cross examination of Sh. Gopal Krishan Agarwal is necessary and request for the same was made but this plea was not accepted by the Commissioner. Against the above order of the Commissioner, the appellants filed appeals before the Tribunal along with stay applications. The Stay applications were disposed of by the Tribunal along with stay application file by other manufacturer vide stay order no. 52262-52272/2014 dated 11.07.2014. By this stay order, while M/s Scania Steels and Power Ltd were directed to pre-deposit an amount of ₹ 80 Lakh and M/s MSP Steel, Power Ltd. were directed to deposit an amount of ₹ 30 Lakh within a period of 4 weeks and the compliance was to be reported on 15.09.2014. 1.2 Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Ld. Counsel for the Respondents submits that without prejudice to the rights and contentions of the Respondents in any proposed application that may be filed by the Petitioners, it may not be construed as liberty to file without pre-deposit. 5. As the present applications primarily arise out of non-compliance of an interim order, a merit adjudication is yet to be made by the Tribunal which shall give finality to the issue we permit the Petitioners to withdraw the applications with liberty to file an application for restoration before the Tribunal provided it is done within four weeks from today, failing which the liberty granted by us shall automatically become inoperative. The discretion of the Tribunal in accordance with law remains unhindered. 6. The applications are dismissed as withdrawn with liberty. 1.6 Accordingly, in pursuance of the order dated 04.02.2015 of Honble Chhattisgarh High Court read with its earlier order dated 01.12.2014 of the High Court in a Tax Case No. 48 52 of 2014, the appellants have filed two miscellaneous applications one application is for restoration of appeal which had been dismissed by the Tribunal vide final order dated 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d M/s Raigarh Ispat and Power Ltd. has vide order no. 50291-50295/2015 dated 27.01.2015 has restored the appeals and has remanded the matter to the Commissioner for de novo adjudication after permitting the cross examination of Sh. Gopal Krishan Agarwal, that it is well settled law that duty demand against an assessee cannot be confirmed only on the basis of third party documents without permitting the cross examination of the persons from whom those documents had been recovered. It was, therefore, pleaded on behalf of the appellants that the stay order dated 11.07.2014 suffers from a serious mistake, and that, therefore, both the miscellaneous applications may be allowed. 4. Sh. Ranjan Khanna, the Ld. DR opposed both the applications pleaded that the cases against the appellant companies are based on the documents recovered from a commissioner agent Sh. Gopal Krishan Agarwal, and his statement, that in his statement Sh. Gopal Krishan Agarwal had explained the entries in the documents with regards to the appellant companies, that Sh. Gopal Krishan Agarwal had not retracted his statement and has deposited the amount of pre-deposit of penalty ordered by the Tribunal in its said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court Cases 660 where the case of tax evasion had been made against the assesee on the basis of a letter issued by the manager of the PNB and the Adjudicating Authority had not made available that letter to the assessee, the Apex Court held that letter issued by the official of the Bank should have been made available to the assessee so that he could seek cross examination of the person who had issued the letter, that Tribunal in the case of M/s Agarwal Rounds Rolling Mills Ltd. vs CCE-Raipur reported in 2014 TIOL 2918 CESTAT Del has held that when the duty demand against an assessee is based on the opinion given by an expert and his cross examination is requested that has to be allowed. Hon ble Allahabad High Court in case of Kurele Pan Products (P) Ltd. reported in 2014 (307) ELT 42(ALL.) has held that cross examination is a valuable right of the noticee in quasi-judicial proceedings and if the same is not provided it would amount to violation of principles of natural justice. In the stay order dated 11.07.2014 of the Apex Court judgment in case of Kishinchand Chellaram vs Comm. of Income Tax, Bombay has not been considered. We also find that in terms of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same have to be applied as far as possible. In our view, when the case against an assessee is based only on the statements of a third party or the documents recovered from him, his cross examination would be necessary. 7. In our prima face view in the stay order dated 11.07.2014 neither the provisions of section 9D(2) have been discussed nor the Apex court judgment in the case of Kishinchand Chellaram vs CIT had been discussed and, therefore, this order suffers from a mistake apparent from record. A Larger Bench judgment of the Tribunal in case of Hindustan Lever Ltd. vs CCE Mum-I reported in 2006 (202) ELT 177 (Tri. LB) in para 6 of the judgment has held that when a decision rendered by apex court is not considered, it is obvious that non-consideration of such binding precedent would constitute an error apparent on the face of record by applicability of doctrine of per incurium. 8. From the above discussion, it is clear that there is gross violation of the principles of natural justice and hence, the appellants would have prima facie case in their favour. In view of this, the requirement of pre-deposit of duty demand, interest and penalty by the appellant company is waived ..... 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