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TMI Blog2019 (12) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... e end of M/s. Star Delta Exim P. Ltd. has been used to issue a Show Cause Notice to the appellant herein. The appellant cannot have any knowledge of the accounts or the activity of the supplier and would not be in a position to challenge the allegations if the said supplier is not a party to the proceedings initiated against the appellant. The department does not have a case that during the said dates the appellant did not manufacture finished goods. In the statement of Shri Pawan Kumar, director of M/s. Star Delta Exim P. Ltd. relied by the department, it is clearly stated that he was issuing fictitious invoices on commission basis to Chandra Proteco Ltd. - The Show Cause Notice has even then been issued merely relying upon the statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leging that the appellant has availed irregular CENVAT credit in respect of two invoices dated 8.11.2012 and 9.11.2012 issued by M/s. Star Delta Exim P. Ltd. After due process of law, the original authority held that appellant has availed credit irregularly as per the invoices and confirmed the demand, interest and imposed penalty. The said decision was upheld by Commissioner (Appeals). Aggrieved by such order, appellant is now before the Tribunal. 2. The learned counsel Shri S. Venkatachalam appeared for the appellant. He submitted that disallowance of credit is only with respect to two invoices issued by M/s. Star Delta Exim P. Ltd. There is no evidence at all adduced by the department to show that the appellant has not received any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. only. They have not made any mention of the present appellant s name. Further, it has been stated by the said director that goods were genuinely sold to other parties. From such statement itself it can be seen that the goods were supplied to the appellant by the disputed invoices. He referred to para 5 of the Show Cause Notice to argue that after perusing the invoices, transport documents and other materials produced by the appellant along with the reply to the Show Cause Notice, the department has entertained an observation that the availment of credit by the appellant is in order. It is further stated that the proprietor of M/s. Happy Transport deposed that he has not transported the goods alleged in the Show Cause Notice for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing activity carried out by M/s. Star Delta Exim P. Ltd. That the statement recorded would also show that invoices were issued without supply of materials. In the statements of the authorized signatories of M/s. Star Delta Exim P. Ltd., the deponents have categorically stated that invoices were issued without actual movement of goods. The payments for the invoice value had been received in their bank accounts through RTGS but the monies were returned to the concerned persons through non-banking channels after deducting their commission. The statement of the proprietor of Happy Transport also shows that the goods were not delivered as per the invoice. Thus statement gathered during the investigation throws light that the goods have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing availment of credit and that it appears from the documents that the credit availed is in order. The Show Cause Notice has even then been issued merely relying upon the statement of the proprietor of Happy Transport. When the department has relied strongly on the statement of the proprietor of Happy Transport as well as that of Pawan Kumar, Director of M/s. Star Delta Exim P. Ltd., they ought to have given an opportunity for cross-examination of these witnesses. I find no plausible explanation put forward by the adjudicating authority for denying the cross-examination. 7. The Hon'ble High Court of Punjab Haryana in the case of G-Tech Industries Vs. Union of India 2016 (339) ELT 209 (P H) has emphasized the need for cross-examination ..... X X X X Extracts X X X X X X X X Extracts X X X X
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