2023 (3) TMI 690 - AT - Central Excise

Maintainability of the appeal - validity of review order was signed separately by the two members of the Committee of Commissioners - It is submitted that the review order is bad as there is no formation of opinion in terms of section 35B(2) of CEA - CENVAT Credit - passing on the CENVAT Credit to manufacturing units of M.S. Ingots (either directly or through second stage dealers) on the basis of Central excise invoices issued by some non- existing/existing manufacturers - Opportunity of cross-examination not granted - principles of natural justice - HELD THAT:- Though at the time of the hearing of the appeal the counsel for the respondent had chosen not to argue this point, however we would like to briefly address this issue as the same stands concluded by the decision of the Larger Bench of the Delhi High Court in COMMISSIONER OF SERVICE TAX VERSUS JAPAN AIRLINES INTERNATIONAL CO. LTD. [2015 (7) TMI 824 - DELHI HIGH COURT]. The issue raised therein was identical and the Court concluded that the decision rendered by the Committee of Commissioner is an administrative function and, therefore, a meeting or a consultation is not mandatory so long as each member of the Committee has the requisite material placed before him. It was further observed that the Tribunal while acting as an appellate authority has no jurisdiction to strike down a decision taken by the Committee of Commissioners on the administrative side and the only requirement is to ensure that there is a decision of the Committee of Commissioners to institute an appeal - The objection taken by the respondent in this regard is unsustainable and needs to be rejected.

The relied upon documents in the show cause notice are mainly the statements of the manufacturers and dealers including the Director and General Manager of the assessee company which were recorded during the course of investigation - during the adjudication proceedings the assessee requested for cross examination of the persons who made these statements, however, the same was rejected by the adjudicating authority as according to him no evidence has been used against the assessee behind their back as the Director and the General Manager was given ample opportunity to examine the evidences corroborated by the statements recorded by the DGCEI and it is only after perusing the statements placed before them that they gave their testimony and further admitted the facts of wrongly availing the CENVAT credit. In fact they reversed the CENVAT credit of Rs 2,03,000/- and also assured to pay the remaining amount towards the CENVAT credit. The adjudicating authority, therefore concluded that principles of natural justice have been satisfied.

In the decision of High Court of Gujarat in COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD - II VERSUS GUJARAT CYPROMET LTD. [2013 (7) TMI 245 - GUJARAT HIGH COURT] the revenue had challenged the order of the Tribunal remanding the matter back to the adjudicating authority as no opportunity of cross examination was granted.

Thus, in the interest of justice it would be appropriate to remand the matter before the adjudicating authority to grant necessary opportunity in compliance with the provisions of Section 9D of CEA to the respondent to cross examine the witnesses relied upon by the revenue - appeal disposed of by way of remand to the original authority.