9911796707
TMI Blog2024 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ited [ 2023 (7) TMI 1112 - CESTAT CHANDIGARH] wherein it was held that the cross-examination of witnesses whose statements were relied upon by the Revenue to make out a case against the assessee has to be allowed. By following the ratio of the above said decisions, the impugned orders are not sustainable and therefore, the 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. The appellants are directed to cooperate with the Adjudicating Authority for a speedy disposal of the case - appeals are allowed by way of remand. - S. S. GARG, MEMBER (JUDICIAL) Shri Bharat Jain, Shri Naveen Bindal, Advocates for the Appellant Shri Shivam Syal, Shri Ravinder Jangu, Authorized Representatives for the Respondent ORDER These six appeals have been filed by the appellants against different impugned orders passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected their appeals and confirmed the Order-in-Originals. All these 06 appeals are arising out of same investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of Shri Vishal Batta and other material persons and after completion of the investigation, the appellant was issued Show Cause Notice for recovery of the Central Excise Duty of Rs.26,55,997/- along with interest and for imposition of penalty. After following the due process, the Assistant Commissioner vide Order-in-Original dated 22.04.2021 disallowed the whole of CENVAT credit of Rs.26,55,997/- and ordered its recovery by way of confirming Central Excise Duty demand under Section 114A(4) of the Central Excise Act, 1944 along with recovery of interest under Section 11AA of the Central Excise Act, 1944. Further, an equal penalty of Rs.26,55,997/- was imposed under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. Aggrieved by the said order, the appellant filed appeal before the learned Commissioner (Appeals) and the learned Commissioner (Appeals) has rejected the appeal filed by the appellant only by reiterating the allegations raised in the Show Cause Notice and grounds taken in the Order-in-Original by the adjudicating authority. Hence, these appeals. 3. Heard both sides and perused the record of the case. 4. Learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Drugs Pvt. Ltd. Vs UOI- 2016 (340) ELT 67 (P H), has categorically held in Para 19 that it is mandatory to allow the cross-examination of the material witnesses whose statement is relied upon against the assessee. Learned Counsel further submits that this Tribunal by following the ratio of the decision of the jurisdictional High Court in the case of Jindal Drugs Pvt. Ltd. (cited supra) has held in the case of M/s Lauls Ltd. Vs CCE (Final Order No.60192-60194/2023 dated 19.07.2023) has held as under: 8. We find that the appellants have made a request to the Adjudicating Authority to give an opportunity to cross-examine particularly, Shri Ram Bilas Bansal, Shri Abhay Gupta and Shri D.K. Gupta, the witnesses. However, the Adjudicating Authority has not accepted the request. Adjudicating Authority finds that: M/s Lauls Ltd, Faridabad (Noticee No. 1) in their reply dated 30.9.2009 had asked for cross-examination of the witnesses whose statements had been relied upon in the show cause notice, but thereafter they did not stress for cross-examination of said witnesses. Even during the personal hearing held on 23.11.2009 before the then Commissioner of Central Excise, Delhi-IV, Faridabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 10. We find that Hon ble Punjab Haryana High Court observed in the case of Jindal Drugs Pvt. Limited (supra) held that: 15 . Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, it is self-evident inference that the decision flowing from the exercise of such discretion, i.e., the order which would be passed, by the adjudicating authority under Section 9D, if he chooses to invoke clause (a) of sub-section (1) thereof, would be pregnable to challenge. While the judgment of the Delhi High Court in J K Cigarettes Ltd. (supra) holds that the said challenge could be ventilated in appeal, the petitioners have also invited attention to an unreported short order of the Supreme Court in UOI and Another v. GTC India and Others in SLP (C) No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the witness concerned. 19 . Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the appellant wanted from them. 7 . As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17-32005 [2005 (187) E.L.T. A33 (S.C.)] was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. 12. With due difference to the Hon ble Supreme Court and Hon ble High Court of (Punjab Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
