Home Case Index All Cases Customs Customs + AT Customs - 2015 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (5) TMI 94 - AT - CustomsDEPB Benefit - Overvaluation of goods - appellant have overvalued the export consignments to reduce their profit margin - Held that:- Though the Commissioner by invoking section 9D(1) (a) read with Section 9D(2) of Central Excise Act, 1944 has relied upon the statements of the suppliers which did not turn up for cross examination, he while doing so, has not followed the directions of Hon'ble Delhi High Court on this issue in para 28 to 32 its judgement in the case of J & K Cigarettes vs. Commissioner of Customs, Delhi reported in [2009 (8) TMI 64 - DELHI HIGH COURT] and has not given a finding that on the point as to whether the two witnesses, who did not turn up for cross examination are dead or cannot be found or are incapable of giving evidence or are being kept out of the way by the appellant or their presence cannot be obtained without an amount of delay or expense , which is unreasonable. Just because the witnesses did not appear for cross examination, their statements cannot be used against the appellant by invoking section 9D(2) read with section 9D(1) (a). For invoking these provisions, a finding by the adjudicating authority after hearing affected party that the circumstances enumerated in clause (a) of section 9D(1) exist, has to be given, while this has not been done in this case. - impugned order is set aside and the matter is remanded back to the Commissioner for de novo adjudication - Decided in favour of assessee.
|