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TMI Blog2024 (12) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of the representative of the assessee at the time of stock verification is not sufficient which was retracted subsequently. The confessional statement of an accused in criminal proceedings cannot be put on a par with a statement recorded during preventive checks - In the present case, it is found that Appellant claimed that the said materials were lying at their factory and during the search officers not considered the finished goods available in various sections/sheds, appellant also produced the CCTV footage which was also not considered by both the adjudicating authority and no enquiry was conducted thereon - the shortage found at the time of physical verification is not sustainable and that the allegations in the instant case of clandestine removal of the finished goods is not sustainable Accordingly, demand on this account is set aside. Denial of Cenvat credit of Rs. 72,91,056/- on the allegation that the appellant has availed Cenvat Credit on the strength of invoices issued by M/s. Siddhi Trading Corporation, M/s Eskay-Bee International Pvt. Ltd., M/s. Deluxe Karan Imports Pvt. Ltd. and M/s. Kookey Multi Trading Corporation without receipts of the inputs in their fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dences which result the disallowance of credit - the appellant have satisfied the requirement of receipt of inputs along with cenvatable invoices in their factory and accordingly, the Cenvat credit taken by them is in accordance with the scheme of the Act read with Cenvat Credit Rules. The impugned order is set aside - appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Shri Ankur Upadhyay, Advocate for the Appellant Shri R R Kurup, Superintendent (AR) for the Respondent ORDER RAMESH NAIR This appeal has been filed against the Orders-in-Appeal No. CCESA-SRT/(APPEALS)/PS-747-748/2017-18 dated 29.01.2019 passed by the Commissioner (Appeals), Surat. 1.1 Brief facts of the case are that on the basis of intelligence that the Appellant are indulged in the evasion of Central Excise Duty by diversion of duty paid inputs i.e. imported plastic granules of various grades from Mumbai port to Halol, Ahmedabad, Vadodara, Vapi, etc. and are availing the Cenvat credit of duty paid on such diverted plastic granules without actual receipts of the same in their factory, search operations were conducted on 03.12.2015 by the officers of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order is liable to be set aside. 2.1 He also submits that the department have relied upon the statements of transporters alongwith other persons for alleging non-receipt of the inputs in the factory of the Appellant and regarding clandestine clearance of the goods. In this context appellant, requested for cross-examination of the persons alongwith Deepash Shah Alias Nanubhai, Panchas of the Panchanam dated 03.12.2015, investigating officers of DGCEI and drivers of the vehicle who transported the disputed goods. Whereas, out of total witnesses, only three witnesses were cross-examined and remaining witnesses, i.e. Shri Amish Shah, M/s Esaky Bee International Pvt. Ltd., Shri Bhushan Paran, Kookey Multitrading Pvt. Ltd., Shri Vujay Thakkar, M/s. Siddhi Trading Corporation, Shri Abhishek Kanojiya, M/s. Deluxe Karan Imports Pvt. Ltd. whose cross-examination could not be done due to non production of witnesses, thus said statement can not be relied upon by the department in the interest of justice as the said statement has not been cross-examined. Also, Cross-examination of Shri Deepesh Shah Alias Nanubhai, Panchas of the panchanama dated 03.12.2015, investigating officers of DGCEI w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant diverted the raw material and clandestinely removed finished goods. 4.1 The demand of Rs. 9,93,922/- was confirmed in respect of shortages of finished goods detected at the time of visit of the officers. Department contended that the said shortage was admitted by the Shri Kishore Tusidas Bhanusali, partner of Appellant firm. Appellants have strongly contended that there is no shortage of finished goods. Proper panchnama have not been drawn for the physical availability of goods in various sections/sheds of the factory premises. Both the authorities have not taken into account of the CCTV footage of 03.12.2015. Further the cross-examination of panch witnesses and DGCEI officers have been denied and statements of the partner is retracted. We find that apart from the shortages, there is virtually no other evidence on record to reflect upon the alleged clandestine activities of the appellant. As per the settled law such shortages, by themselves, cannot lead to the fact of clandestine removals so as to justify confirmation of demands. Reference can be made to the Hon'ble Allahabad High Court decision in the case of Minakshi Castings reported in 2011 (274) E.L.T. 180 (All.) as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddhi Trading Corporation, M/s Eskay-Bee International Pvt. Ltd., M/s. Deluxe Karan Imports Pvt. Ltd. and M/s. Kookey Multi Trading Corporation without receipts of the inputs in their factory. To make such allegation, revenue mainly relied upon the statements of Transporters, Dealers. We find that Appellant requested for cross-examination of all the witnesses. Out of total witnesses only 3 witnesses were cross-examined. On perusal of orders we find that the request for cross-examination of the persons whose statements have been relied upon has been turned down on the ground that witnesses did not appear for cross examination. The reasons assigned by the Ld. Adjudicating authority below to reject cross-examination is clearly unsustainable in legal parlance for the obvious reason that no adverse inference can be drawn against assessee whose statements are to be relied by the Revenue without ascertaining the veracity in the absence of cross-examination. In an almost identical situation, this Tribunal in the case of Arsh Castings Pvt. Ltd. v. CCE, Chandigarh - 1996 (81) E.L.T. 276 (Tri.) has observed that: - 8. Considered. It is not in dispute that the entire case of the Department rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case of L. Chandrasekhar v. Collector of Customs, supra, decided by the Tribunal applies on all fours to the present case. For ready reference, the relevant portion may be reproduced herein with advantage:- 5. On going through the records, I find that the factual submission set out above and made by the Learned Counsel are correct. The Tribunal initially remanded the case for giving the appellant an opportunity of cross-examination of third parties on whose statements reliance had been placed against the appellant. In the impugned order, after remand, the Learned Adjudicating Authority in this context has observed as under :- S/Sri Sundarraj, Velusamy, Manuel Coreira, Sethu and Kalyani who were called upon for cross-examination did not turn up. The Advocates insisted on their cross-examination but it appeared that they are keeping away from their proceedings and as such the process could not be completed. Moreover, the case could not be kept in abeyance indefinitely merely on the non-availability of persons required for cross-examination. The adjudicating authority again in the finding column in the impugned order has observed as under: - The opportunity by cross-examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Parmarth Iron Pvt. Ltd. has held that when the Revenue does not allow cross-examination of any prosecution witness then Revenue cannot rely on the statement given by such prosecution witness for confirmation of demand. In this context we also find the support from following judgments: - Nu- Trend Business Machines (P) Ltd. Vs. Commissioner , Chennai - 2002 (141) E.L.T. 119 (Tri. - Chennai) Commissioner of Central Excise Meerut-I Vs. Parmarth Iron Pvt. Ltd. -2010 (260) E.L.T. 514 (All.) Madhura Ingots Steel Co. Pvt. Ltd. Vs. Commr. Of CGST CX, Ranch - 2022 (380) E.L.T. 334 (Tri. - Kolkata) 4.6 So far as the admission of Mr. Kishor, T, Bhanusail, partner of Appellant during investigation, of having availed irregular Cenvat credit, as claimed by Revenue, we also find that Shri Kishor T. Bhanusail, partner of M/s. Kesar Impex retracted his statement dated 03.10.2015 vide affidavit dated 04.12.2015 and statement dated 07.04.2016 vide affidavit dated 07.04.2016, thus the above statements do not have evidentiary value. 4.7 We also find that in the present matter contrary to the allegations of the department the fact that the Appellant have duly recorded the receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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