9911796707
TMI Blog2024 (1) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... led in this appeal. 2. Briefly stated, facts of the case is that Appellant is a manufacturer of MS structural items falling under Chapter 72 of Central Excise Tariff Act, 1985, having centralised registration number for such manufacturing and clearance Directorate General of Central Excise Intelligence (DGCEI), Pune regional unit gathered information that Appellant had received unaccounted ship breaking scrap through one M/s. Vikram Iron, who had availed CENVAT Credit on duties shown in the invoices and Appellant received the goods without documents as well as used the same in the manufacturing process. Investigation concluded with issue of show cause-cum-demand notice on dated 19.05.2017 that was adjudicated by the Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceable from his order as throughout the proceedings Appellant was denied Cross examination of the proprietor/partner/agent of M/s. New Niranjan Roadlines, Somnath Roadlines, Pooja Roadlines, N.M. Roadways, Shri Hitesh Shah, partner of M/s. Gohilwad Ship Breaking Company, Proprietor/Partner of M/s. Kathiawar Steel, Alang, Virendra & Co. Aland and Mahavir Metal Corporation, whose statements were sought to be relied upon by the Commissioner (Appeals), which practice is depreciated by the judiciary even at the Apex Court level, as has been reported in 2015 (324) ELT 641 (SC) in Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata-II, 2006 (193) ELT 385 (Bom.) Kellogg India Pvt. Ltd., 1978 (2) ELT (J 500) (Del.) Lachhman Das, To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at placing reliance on the judgment of the Hon'ble Supreme Court passed in the case of System Components Vs. CCE, Madras reported in 2004 (165) ELT 136 (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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded the retracted statement of the Director in placing reliance on the judgment of this Tribunal passed in the case of Commissioner of Central Excise, Mumbai Vs. Champion Confectionery as reported in 2010 (262) ELT 865 wherein it has been held that retraction, if any, made should be made before the authority to whom statements were given. Further in placing reliance on the judgment of the Hon'ble Apex Court in System Components, cited supra, he confirmed the duty demanded on the Appellant alongwith interest and penalty by holding that clandestine clearance was established. 6. After going through contradictory findings made in the Order-in- Original and Order-in-Appeal, it would be worthwhile to further analyse the reasoning given in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into. That operator in the instant case no recovery of unaccounted goods was made, placing reliance on the judgment of System Components, cited supra would be of no benefit to the Department to establish the allegation of clandestine of removal. Apart from confessional statement, nothing noticeable is found in the order of the Commissioner (Appeals) that would substantiate the allegation and discard the order passed by the Adjudicating Authority. Hence the order. THE ORDER 7. The appeal is allowed and the order passed by the Commissioner of GST & Central Excise (Appeals) Nashik vide Order-in- Appeal No. NSK/EXCUS/000/APPL/743/18-19 dated 28.02.2019 is hereby set aside, with consequential relief, if any. (Order pronounced in the open co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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