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2023 (10) TMI 524 - AT - Central ExciseCENVAT Credit - Allegation of non-receipt of material - reliance placed upon the statements of directors - cross examination of witnesses - contravention of Section 9D of Central Excise Act - HELD THAT:- In the first instance the impugned order is bad in law because the whole case was built only on the statement of Mr. K.P. Khemka and Mr. Rupesh Bansal and Mr. Yashpal Sharma and no opportunity of cross examination was provided to the appellant despite specific request. The Ld. Commissioner (Appeals) has not considered the evidence namely RG-23C part I and the bank statements showing payment to transporter and the supplier. Further, department has not been able to bring any independent evidence to prove the allegations of non-receipt of goods against the appellant. Besides this, statement of Shri Sushil Jain dated 09.02.2009 and Shri Suresh Sharma, the authorized representative of the transporter has been rejected without any basis. In the case of M/S NIDHI METAL AUTO COMPONENTS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-IV [2015 (4) TMI 649 - CESTAT NEW DELHI] and S.K. Foils Ltd. v. Commissioner of Central Excise, Rohtak [2014 (3) TMI 412 - CESTAT NEW DELHI] where the manufacturer and first stage dealer were same, relief was granted to the assessee on the observation that allegation had been made on basis of statement of manufacturer, dealer/ supplier of invoice and there is no discrepancy in the invoice and payment has been made through cheque. The appellant has regularly filed the statutory returns on monthly basis and the fact of clearance of goods and availment of credit was duly reflected in the returns but the same has not been examined by the authorities below. The impugned order is not sustainable in law - Appeal allowed.
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