9911796707
TMI Blog2019 (10) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... nds already discharged, that too, voluntarily. Law has also been settled that payment of duty under protest does not estoppes the assessee from challenging the illegality. The improved statements of the witnesses without them being cross-examined by the assessee cannot form the basis of confirming the demand against the assessee. Admittedly none of those witnesses are from appellant s company. The evidence otherwise becomes a third party evidence with no cogent corroboration from appellants. Lack of evidence - HELD THAT:- Admittedly, no investigation with M/s. Isha Enterprises has ever been done by the Department to this aspect, except recording the statements of both the partners thereof. The admission coming out of from both the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals, as the issue involved being common and appellants being the co-noticees. The details of three of these appeals are as follows:- Sl. No Appeal No. and name of appellant S.C.N. No. Date Period Demand O-I-O No. Date O-I-A No. Date Remarks 1 Excise Appeal No. 51631 of 2018 [SM] M/s.Jagdamba TMT Mills Ltd. V(H) Adj.-1/CE-72/162/2012 Dated 23.12. 2012 2009-10 2010-11 ₹ 22,88,508/- 16/CE/Demand/2016-17 No.82 (RK)CE/JPR/2017-18 dated 28.03.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as mentioned above based on the cenvatable invoices issued by M/s. Isha Enterprises in favour of the various dealers including the appellants without supplying any goods as mentioned therein. 3. I have heard Shri Jayant Kumar, ld. Advocate for the Appellant and Shri K. Poddar, ld. Authorised Representative for the Department. 4. It is submitted on behalf of the appellant that passing of cenvat credit without actual delivery of goods is a positive act, which is required to be proved by tangible, direct reliable and affirmative evidences but the demand in this case is based only on some handwritten Ledger Accounts and slip-pads allegedly seized from the house of Mr. Baldev Raj Bhatia. It is impressed upon that the documents were colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with mathematical procession. That orders under challenge are prayed to be upheld and appeals to be dismissed. 6. After hearing both the parties, the grounds of challenging the Orders-in-Appeal are decided as follows:- (A) The denial of opportunity to cross-examine to cross-examine the witnesses by the Adjudicating Authority: The statements of witnesses namely Mr. Jadish Lal Bhatia Mr. Gulshan Bhatia both partners of M/s. Isha Enterprises were made the basis of the impugned order alongwith the documents as were recovered from the house of Baldev Raj Bhatia, a relative of above two witnesses. Admittedly neither both the witnesses were allowed to be cross-examined by the appellant nor the opportunity to confront those documents wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of confirming the demand against the assessee. Admittedly none of those witnesses are from appellant s company. The evidence otherwise becomes a third party evidence with no cogent corroboration from appellants. (B) Now coming to the issue of lack of evidence: The Department has alleged that appellants have fraudulently availed cenvat credit on such invoices along which there was no delivery of goods. This Tribunal in the case of M/s. Lloyds Metal Engineering Ltd. vs. CCE, Mumbai reported in 2004 (175) ELT 132 (Tribunal) has held that burden to prove the non-receipt of inputs is required to be discharged by Revenue by producing sufficient evidence. If there is no such evidence, credit availed on the basis of invoices issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them. Admittedly, no investigation with M/s. Isha Enterprises has ever been done by the Department to this aspect, except recording the statements of both the partners thereof. The admission coming out of from both the said statements is the sole basis to adjudicate against the present appellants. I am of the opinion that the adjudicating authority has committed an error because the admission of the maker though can be used against the maker thereof but cannot be used against any other person, except after the said other person is provided an opportunity to cross-examine the maker of admission. As already discussed above, no such opportunity was provided. There seems no justification for remanding the matter to grant an opportunity to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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