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TMI Blog2016 (1) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be denied to the appellants. In these circumstances, in the absence of any contrary evidence, the demands against the appellants is not sustainable, hence set aside. Consequently, the penalties on the appellants are also set aside. - Decided in favour of assessee - Appeal Nos. E/50954, 50963-50967, 51822, 51827 & 51828/2014-EX(SM) - - - Dated:- 17-11-2015 - Ashok Jindal, Member (J) For the Appellant : Shri Bipin Garg, Adv For the Respondent : Shri B B Sharma, DR ORDER Per Ashok Jindal The appellants are in appeal against the impugned order demanding duty along with interest and imposing penalty on all the appellants. 2. The facts of the case are that M/s. Nirmal Inductomelts Pvt. Ltd., Balaji Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and these transporters have denied of transporting the goods covered in the invoices. Therefore, the adjudicating authority has arrived at a decision that goods have not been received by the manufacturers and only invoices have been received. No cross examination of transporter / owner / driver of the vehicle were granted to the appellants to defend their case. Therefore, the order of denying Cenvat Credit is in gross violation of principle of natural justice as held by the Hon'ble Apex Court in the case of Andaman Timber Industries Vs. CCE Kolkata-2015 (324) ELT 641 (SC). Therefore, the impugned orders are to be set aside. It is further contended that no other corroborative evidence has been produced by the Revenue to deny Cenvat Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement it has been clarified that these transports have not transported the goods to the appellants. Therefore, the Adjudicating authority has rightly denied the Cenvat Credit. 4. Heard the parties. Considered the submission. 5. In this case, the allegation against the appellants is that they have not received the goods in their factory physically but have received only the invoices. To confirm this, the adjudicating authority have relied on the statement of transporters / drivers / owners of the vehicles whose vehicle numbers have been mentioned in the invoices. In fact, out of total 83 consignments, the statement were recorded only in the case of 20 consignments. All these statements have been recorded after a gap of time between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal on merits giving its reasons for accepting or rejecting the submissions. 8. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the show cause notice. 7. Thereafter, the Hon'ble Apex Court has come to the conclusion that cross examination of the witness is required to arrive at a fruitful decision of the case. Admittedly in this case, the cross examination was denied to the appellants. As no other corroborative evidence has been produced by the Revenue to deny Cenvat Credit. Therefore, merely on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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