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2017 (11) TMI 769 - AT - Central ExciseCENVAT credit - Revenue's main case is based upon the statement of Shri S.K.Gupta, Proprietor of M/s. M.K.Steels. Admittedly, the said Shri Gupta was not presented for cross-examination or for examination in chief by the Commissioner - cross-examination - Held that: - The Tribunal in the case of Commr. Vs. Kuber Tobacco India Ltd. [2016 (4) TMI 622 - CESTAT NEW DELHI] held that Adjudicating Authority is first required to examine the deponent of the statement and there after cross-examination is required - In the absence of such cross-examination and examination in chief, the statement on which the Revenue seeks to rely, have to be excluded from evidence. The appellants have made payment to Shri S.K.Gupta by cheques. Apart from the statement of Shri S.K.Gupta that such cheques were subsequently encashed by him and the amounts were returned to the appellants, there is virtually no evidence to establish the said fact. Revenue has not investigated the matter with the banks and has made no efforts to establish that the cheque payments made to M/s. M.K.Steels as consideration for the bought out inputs were received back by the appellants in cash. I also note that Shri S.K.Gupta apart from making bald statement that the amounts were returned to the assessee through broker, who was given 1% commission has given no further details. There is nothing on record to establish the said transactions. Appeal allowed - decided in favor of appellant.
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