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TMI Blog2024 (11) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... same is set aside and the cases remanded back to the Adjudicating Authority for a fresh decision after affording opportunity of cross-examination of the material witnesses and by following the procedure as prescribed in Section 9D of the Central Excise Act. Both the appeals are allowed by way of remand - The appellants are directed to cooperate with the Adjudicating Authority for a speedy disposal of the case. - MR. S. S. GARG, MEMBER (JUDICIAL) Shri Naveen Bindal, Advocate for the Appellant Shri Ravinder Jangu, Authorized Representative for the Respondent ORDER These two appeals are directed against the common impugned order dated 25.07.2023 whereby the Commissioner (Appeals) has rejected the appeals of the appellant and upheld the Order-in- Original. Both the appeals are taken up together for discussion and disposal as both are arising from the common impugned order. 2. Briefly the issue involved is that, based on investigation, statements and documents procured during the investigation, the DGGI/DGGSTI Officers established that one Vishal Batta had issued dealer's invoices of a dealer firm i.e. M/s Labh Hi-Tech Metal (Run by him in the name of his employee) to various furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. He further submits that investigation in this case was conducted by DGGI/DGGSTI against M/s Aryan Enterprises, Ludhiana and M/s Labh Hi-Tech Metal, Ludhiana, who were registered as Central Excise dealers and engaged in the trading of iron and steel scrap and as per their investigation, these two dealers were engaged in fraudulently passing on Cenvat credit of excise duty to various furnace units by issuing fake dealer s bills on the strength of forged excise duty paid invoices of source manufacturing units. He further submits that M/s Aryan Enterprises is a proprietorship firm of Shri Vishal Batta and M/s Labh Hi-Tech Metal is a proprietorship firm of Shri Khushi Ram Sharma. He further submits that the entire case was built on the statements of Shri Bhupinder Singh, Accountant of M/s Aryan Enterprises and Shri Vishal Batta and Shri Khushi Ram Sharma and on the basis of their statements, the Revenue has formed their opinion that the appellant has not received the material from their supplier and has only got the fake invoices and on the basis of which they have claimed the Cenvat credit. He further submits that before the Adjudicating Authority as well as before the Appellate Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal hearing for and on behalf of M/s Lauls Ltd and Noticee No. 2-Shri Abhay Gupta. However, the Noticee No. 1 again made the request for cross-examination of witnesses during the course of personal hearing held on 25.5.2011, which was the IVth date of hearing and the Noticee No. 1 had already been specifically informed vide office letter C. No. V(72)15/Commr/CE/2008/4027-28 dated 16.5.2011 that 25.5.2011 was the last and final date of hearing and accordingly the Counsel of Noticee No.1 as well as S/Shri Abhay Gupta and Sudhir Gupta, Directors of Noticee No.1 who had appeared for personal hearing on 25.5.2011 were informed that their request for cross-examination of witnesses at this stage cannot be allowed. I find that cross-examination of witnesses in this case and that too at this late stage, is not warranted. He relies on the Judgment of the Hon'ble Supreme Court of India in the case of Kanungo Co. Versus Collector of Customs, Calcutta and Others- 1983(13)ELT1486 (SC). 9. We find that the Adjudicating Authority has rejected the request of cross-examination for the reason that though they had requested for cross-examination vide their Letter dated 30.09.2009, they did not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, it is clear that the adjudicating authority cannot invoke Section 9D(1)(a) of the Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 16 . If none of the circumstances contemplated by clause (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1), viz. (i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 17 . There is no justification for jettisoning this procedure, statutorily prescribed by plenary Parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise Officer, which does not suffer from the handicaps contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to precede re-examination. 21 . It is only, therefore, - (i) after the person whose statement has already been recorded before a Gazetted Central Excise Officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-examination, can arise. We find that the Hon ble High Court has followed the above in the case of G.Tech Industries (supra) also. 11. We find that Hon ble Supreme Court in the case of Andaman Timber Industries- 2015 (324) ELT 641 (SC) observes that: 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Counsel for the appellants, we are inclined to accept the contention and the request of learned Counsel for the appellants that the interest of justice would be properly served if the case goes back to the Adjudicating Authority to adjudicate the case afresh after giving the opportunity to the appellants to cross-examine the key witnesses whose statements have been relied upon by the impugned order. 5. Learned Counsel further submits that in the case of Tibrewala Industries (P) Ltd. Vs CCE, Rohtak (Final Order No.60195- 60197/2023 dated 19.07.2023), this Tribunal has again followed the law laid down by the Hon ble Punjab Haryana High Court in the case of Jindal Drugs Pvt. Ltd. (cited supra) and other decisions cited supra and set aside the impugned order and remanded the case back to the Adjudicating Authority. 6. On the other hand, learned Authorized Representative for the Department reiterates the findings of the impugned order. 7. After considering the submissions of both the parties and perusal of the material on record, I find that the identical issue has been decided by the Hon ble Punjab Haryana High Court in the case of Jindal Drugs Pvt. Ltd. (supra) as well as by this T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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