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2018 (4) TMI 1788 - AT - Central ExciseNon-imposition of penalty under Rule 13 of CCR, 2002 and Rule 15 of CCR, 2004, read with Rule 25 of CER 2002, and section 11AC of Central Excise Act, 1944 - Clandestine removal - allegation of non receipt of inputs like Ferro Manganese, Ferro Silicon Lumps, Ferro Chromes, manganese Ingot, Chrome Ingot etc. - demand based on statement of various persons - opportunity for cross-examination denied - Principles of Natural Justice - Difference of opinion - majority order. Whether in view of the gross violation of principles of natural justice and lack of adherence to the procedure under Section 9D, the matter be remanded back to the adjudicating authority for de novo adjudication, as held by Member (Technical)? HELD THAT:- Hon’ble High Court of Punjab & Haryana in the case of M/S AMBIKA INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 919 - PUNJAB AND HARYANA HIGH COURT] has clearly ruled that if the person whose statement has already been recoded is to be examined before the adjudicating authority and if the adjudicating authority arrives at a conclusion that the statement deserves to be admitted in evidence then the question of offering the witnesses to the assessee for cross-examination arises, I would have agreed with Ld. Brother Member (Technical) had this procedure been followed by the original authority that the witnesses whose statements were recorded were examined by the adjudicating authority. However the fact is that such examination-in-chief was not conducted by the original authority and therefore, the question of cross-examination does not arise. Therefore, no purpose shall be achieved by remanding the matter back to the original authority for denovo adjudication. I further find that the allegation against M/s.BSPL were that they did not receive inputs but availed the Cenvat Credit only on the strength of invoices without receipt of inputs. The admitted facts are that the appellants, M/s.BSPL had manufactured the goods and paid Central Excise duty on the same and there are no investigations as to from where the inputs were procured by M/s.BSPL for manufacture of goods, if they had received only the invoices and no inputs from M/s.HSAL. The allegations of non-receipt of inputs by M/s.BSPL is not established in the proceedings - The revenue appeal in respect of M/s.AG is for non-imposition of penalty. The same also does not survive because the fact remains on the records that M/s.BSPL manufactured the goods and paid duty on the same. The opinion of the Ld. Member (Judicial) is agreed with - the file send back to the Division Bench.
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