Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2023 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 55 - AT - Central ExcisePrinciples of Natural Justice - demand confirmed merely on the basis of statements of witnesses without the same being corroborated with documentary evidence - opportunity for cross-examination not provided - levy of penalty u/r 209A of Central Excise Rules, 1944 and Rule 173Q of Central Excise Rules, 1944 - HELD THAT:- Admittedly it is second round of litigation before this Tribunal and in the first round of litigation vide order dated 11.08.1998 matter was remanded back to the original authority with a direction to provide copies of all the documents relied upon and seized by the Department and also to pass the order on merit but only few documents could be supplied to the Appellant and complete attendance of only one witness could be procured. However, learned Commissioner (Appeals) had passed his order only on the basis of the documents supplied and the statement of the witness who was cross examined. On close scrutiny of the above observation made by the Commissioner, it goes without saying that (i) some of the duty demand were mistakenly made on the goods traded by the Appellant; (ii) duty was also demanded on Monitors, Key-Boards, other peripherals and data security packages; (iii) alongwith the computer system, duty was also charged on the printers though those where accessories; (iv) his ultimate observation is that confirmation of demand would require necessary scrutinisation of each invoices mentioned in the show-cause notice; (v) confirming demand solely on the basis of statement of witnesses would be inconsistent with the principle of natural justice. Going by the evidentiary value of the statement of witnesses concerning their silence during evidence, if could amount to admission, the settled position of law is that such silence can be treated as acceptance in favour of a defence primarily made under the Laws of Contract but not against a third person and can never be taken as admission of proof of guilty of another person. Furthermore, as could be observed from the Order-in-Original, denial of witness Amit Patel concerning any second sale being made by the Appellant, it can be said that the Order-in-Original is silent about his rebutting back from his statements. On the other hand, discarding the description made in the invoice as ‘second sale’ on the ground that ‘primary sale’ or ‘first sale’ invoices were not available cannot be said to be logical in view of the fact that only scanty documents were available at the time of second adjudication and not the wholly relied upon documents referred in the show-cause notice. Therefore, it would also be erroneous to accept the argument of the learned AR that at some point of time, those documents were available for which their existence and evidentiary value could not be discarded in unacceptable proposition. The proposition available in the findings of Commissioner in absolving M/s Compac Computers from its liability would squarely made applied to the present Appellants for the reason that from the invoices copy supplied to the Appellant, that form part of the record, no sale of new computers are noticeable, to justify taxability against them. Further, it would not be out of place to record that even if taxability would have been justified, direction for payment of interest on the duty demand that was made much prior to the introduction of Section 11AB in 1996 is hit by its sub-Section 2, as was available then and also the same would be contrary to the judicial precedent set by the Tribunal and by various High Courts including in the case of SHRI UKAI PRADESH SAHKARI KHAND UDYOG MANDLI LTD. VERSUS CCE., SURAT [2009 (6) TMI 800 - CESTAT, AHMEDABAD]. The order passed by the Commissioner of Central Excise, Central Excise Bhawan, 115, Maharishi Karve Marg, Mumbai-I vide Order-in-Original No. 25/MI/ 2008 dated 31.12.2008 is hereby set aside - appeal allowed.
|