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TMI Blog2016 (3) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... others were relied upon against M/s KE-I & M/s KE-II, not permitting their cross-examination did cause prejudice to them. In such a situation, such statements of third parties/co-accused whose statements were used to the prejudice of M/s KE-I & M/s KE-II have to be ignored for the purpose of deciding the mater with regard to M/s KE-I & M/s KE-II because their cross examination was not permitted. If the said statements are ignored there remains hardly any evidence against M/s KE-I & II for sustaining the allegation against them. It has also been held by several judgements that 3rd party evidence cannot be made the sole basis of sustaining the demand. When the allegations against M/s KE-I & M/s KE-II are not found sustainable, the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat duty ₹ 2,20,222/- + E. Cess ₹ 4,405/- } from M/s Kisan Extrusion Ltd. Unit-II, Pithapur under Rule 14 of Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of Central Excise Act, 1944 and the payments mentioned at Sr. No. 3 of Para 46 above are ordered to be appropriated against the same; (iv) I impose a penalty of ₹ 2,24,627/- (Rs. Two Lakhs Twenty Four Thousand Six Hundred and Twenty Seven only) upon M/s Kisan Extrusion Ltd. Unit-II, Pithampur under Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944; (v) I order to recover the interest from M/s Kisan Extrusion Ltd. Unit-I, Pithampur and M/s Kisan Extrusion Ltd. Unit-II, Pithampur under Section 11AB of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KE-II on the basis of such invoices was not admissible and as a consequence passed the order above. The Commissioner (Appeals) in its order held that there is no direct evidence against M/s KE-I KE-II regarding the non-receipt of goods in question and the entire case is based on 3rd party evidence and therefore the primary adjudication order cannot be sustained. 3. The ld. DR during hearing strenuously argued that the records obtained during search and the statements of Shri Sangla and others including transporters circumstantially show that supply of goods to various manufacturers was shown only on paper and no goods were supplied to KE-I KE-II and therefore the Commissioner (Appeals) was not right in dropping the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld make no difference-meaning that a hearing would not change the ultimate conclusion reached by the decision-maker in such situations, fair procedures appear to serve no purpose since the right result can be secured without according hearing/cross-examination. (ii) It may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. (iii) The validity of the order has to be decided on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II for sustaining the allegation against them. It has also been held by several judgements that 3rd party evidence cannot be made the sole basis of sustaining the demand; in this regard the following judgements can be referred; (i) Rutvi Steel Alloys Vs. CCE, Rajkot - 2009 (243) ELT 154 (Tri.-Amnd.) (ii) CCE, Coimbatore Vs. Rajaguru Spinning Mills (P) Ltd. - 2009 (243) ELT 280 (Tri.-Chennai) (iii) Rhino Rubbers Pvt. Ltd. Vs. CCE, Bangalore - 1996 (85) ELT 260 (Tri.). (iv) TGL Poshak Corporation Vs. CCE, Hyderabad - 2002 (140) ELT 187 (Tri.-Chennai). Viewed in the context of the analysis above, I do not find the analysis/finding of the Commissioner (Appeals) contained in paras 5.4, 5.5 and 5.6 of the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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