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2014 (9) TMI 687 - AT - Central ExciseCENVAT Credit - non receipt of goods - showing the goods removed for Job work - Job Workers in their respective statements recorded under Section 14 of the Central Excise Act, 1944 admitted that they have not received any raw materials from PMS for processing and as such - Held that:- Though the PMS had requested for supply of the RTO reports but the same were not supplied and similarly while they requested for cross examination of 21 out of 24 job workers, and also of 7 transporters but the same were disallowed by the Commissioner on the ground that the same is not required and the request is being made only to delay the adjudication proceedings. When in this case is the main evidence relied upon by the department is the statement of 24 job workers, in our view, before relying upon the statement of the job workers, and using the same against the PMS, their cross examination should have been permitted. In this regard, Section 9D (1) of the Central Excise Act, 1944 provides that a statement made and sent by a person before any central excise officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contained, when the person who had made the statement is examined as a witness 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. In view of the provisions of sub-section (2) of Section 9 D, the provisions of sub-section (1) of Section 9 D are applicable to the adjudication proceedings also and accordingly, as far as possible before using the statement of a person recorded under Section 14 of the Central Excise Act, 1944, against an assessee, that person must be examined by the adjudicating authority and if his cross examination is requested, the same must be allowed. in view of the provisions of sub-section 9D (2) of Central Excise Act, 1944, the cross examination of a witness, whose statement has been relied upon by the adjudicating authority is a must. Besides this, when the report of the RTO regarding the registration number of the vehicles mentioned in the invoices being non-transport vehicles was relied upon by the department, the copies of the reports should be supplied to the appellant, which admittedly have not been supplied. In view of this, the impugned order is not sustainable. The same is set aside. The matter is remanded to the original adjudicating authority for de novo adjudication after supplying the reports of the RTO relied upon by the department and also examination of the job workers by the Commissioner in terms of the provisions of Section 9 D(2) and also permitting their cross examination by the appellant. - Matter remanded back - Decided in favour of assessee.
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