2022 (11) TMI 1071 - AT - Central Excise
Wrongful availment of CENVAT Credit - admission of fictitious transportation by using registration number of vehicle of defunct transport firm - retraction of statements relied upon - May, 2012 to September, 2014 - contravention of provisions of Rule 3, 4 and 9 of Cenvat Credit Rules, 2004 - HELD THAT:- The plain reading of sub section (1) of section 9D of Central Excise Act makes it clear that clause (a) and (b) of the said section sets out circumstances in which a statement made and sanctioned by a person before Central Excise Officer of a gazetted rank during the course of inquiry or proceedings under the Act, shall be relevant for the purpose of proving the truth of the facts contained therein.
Any findings solely based upon the statements cannot be confirmed against M/s. Mittal Pigments Pvt Ltd. unless those statements have stood the test of Section 9(D) of Central Excise Act. Apparently and admittedly Shri Amit Gupta was not examined by the Adjudicating Authority. More so, for the reason that Shri Amit Gupta was not even allowed to be cross-examined by the appellant and that Shri Sanjeev Maggu had retracted the statements which had been relied upon by the Original Adjudicating Authority - there are no infirmity in the order of Commissioner (Appeals) while denying the admissibility of these statements.
The departmental investigating agencies as well as the Adjudicating Authorities have not yet started observing compliance of mandatory statutory provisions i.e. section 9D of Central Excise Act, 1944 and section 138 B of Customs Act, 1962 without which the statement recorded at the stage of inquiry / investigation will not be relevant for the purpose of proving the truth of requisite facts during prosecution. It is therefore desired that department may come with certain guidelines so that the efforts of investigating team may not be discarded for the reason of non-compliance of aforesaid provisions.
Appeal of Revenue dismissed.