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TMI Blog2024 (1) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... ken as best piece of evidence to establish guilt of the delinquent but in the instant case, no recovery of any goods had taken place to apply the judgment to the facts of this case. Second, what is required to be discussed here is that Appellant was denied with the opportunity of cross examination of the witnesses basing on whose statements, demand was confirmed and in this connection, it would be of great importance to reproduce para 6 of the judgment of the Hon'ble Supreme Court passed in the case of Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II [ 2015 (10) TMI 442 - SUPREME COURT] that explains the basic requirement of cross examination and states the order to be a nullity if principle of natural justice is violated in denying cross examination. The third important point that needs consideration and analysis is the retracted statement of the Director. The contention of the Appellant is that under coercion and duress statement of the Director was recorded. This may be true in most of the cases in which investigation is carried out by agencies who have authority also to prosecute the offenders, for which the statement recorded before those aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the said order that yielded the desired result by way of confirmation of demand, interest and penalty raised in the show-cause notice and in setting aside the adjudication order. Legality of the said order is assailed by the Assesse-Appellant before this forum. 3. During the course of hearing of the appeal and in his written note of the submission, learned Counsel for the Appellant Mr. Ashok Singh argued that solely on the basis of some documents allegedly recovered from third party like M/s. Vikram Steel and uncorroborated testimony of some witnesses, demand was confirmed by the Commissioner (Appeals) despite the fact that Appellant s factory was never visited, no investigation was conducted therein, no documents were seized from the Appellants position concerning physical receipt, transferor processing and supply of finished products by the Appellant. He further submitted that learned Commissioner (Appeals) had also based his findings on the statement of Appellant recorded under threat and coercion on 22.01.2015 that was being retracted through an affidavit on 27.01.2015 i.e. within a span of five days of such recovery and gross violation of natural justice is noticeable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) that is being followed by this Tribunal in the case of Gulabchand Silk Mills reported in M/s 2005 (184) ELT 263 (Tri.-Bang.), the Commissioner (Appeals) had given his findings by holding that facts that has been admitted need not be proved and in the instant case the Director of the Appellant Company Mr. Sasank Narayan himself had admitted his guilt and confessed about clandestine removal of the finished products, for which interference by the Tribunal in the order passed by the Commissioner (Appeals) is uncalled for. 5. I have gone through the submissions, relied upon judgments, written note of argument submitted by the Appellant and perused the case record. As could be noticed, Appellant s factory was never visited by the Investigating Agency nor any seizure of document was made therefrom. Adjudicating Authority had observed in his order about the points raised before this Tribunal by the Appellant in fair detail including the fact that no such seizer being conducted in the Appellants factory, no seizer of invoices or other documents relating to delivery prove of raw material etc., nor any assessment of availability of raw material was made during the investigation. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, what is required to be discussed here is that Appellant was denied with the opportunity of cross examination of the witnesses basing on whose statements, demand was confirmed and in this connection, it would be of great importance to reproduce para 6 of the judgment of the Hon'ble Supreme Court passed in the case of Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II reported in 2015 (324) ELT 641 (SC), that explains the basic requirement of cross examination and states the order to be a nullity if principle of natural justice is violated in denying cross examination. It reads: 6 . According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw 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-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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