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TMI Blog2025 (4) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of Steel Ingot falling under Chapter 72 of Central Tariff Act 1985 and are availing input CENVAT credit on scrap consumed in the manufacture of such Steel Ingots. On the basis of intelligence from DGCEI, a show cause notice dated 14.05.2020 was issued for recovery of alleged irregular input credit amounting to Rs.9,75,456/- during the period 2016-17. The appellant filed detailed reply to the show cause notice and contested the same on various grounds with request for cross-examination of makers of statements relied in the show cause notice but the adjudicating authority rejected the request of cross-examination and confirmed the demand vide Order-in-Original dated 22.03.2022 along with equal penalty under Rule 15(2) of CENVAT Credit Rules read with Section 11A of the Finance Act, 1994. Further, penalty of Rs.5 Lakhs was imposed on Shri Pankaj Aggarwal, Director, who is also the appellant before this Court. The appellant filed appeal before the Commissioner who rejected the same. Hence, the present appeals. 3. Heard both sides and perused the material on record. 4. Learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its 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, no such request for cross-examination of witnesses was stressed either by the Advocate or S/Shri Sudhir Gupta and Abhay Gupta, Directors of Noticee No. 1, who had appeared for personal hearing for and on behalf of M/s Lauls Ltd and Noticee N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, 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. 2183/1994, dated 3-1-1995 wherein it was held that the order passed by the adjudicating authority under Section 9D of the Act could be challenged in writ proceedings as well. Therefore, it is clear that the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances of the case, the statement should be admitted in the interests of justice. 20. In fact, Section 138 of the Indian Evidence Act, 1872, clearly sets out the sequence of evidence, in which evidence-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose 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 17-3-2005 [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 & Haryana), we find that not allowing the cross-examination of key witnesses vitiates the proceedings even under the quasi-judicial proceedings. Therefore, as requested by the learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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