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2018 (5) TMI 1335 - AT - Central ExciseClandestine removal - SS flats - Revenue entertained a view that the assessee had availed the cenvat credit of duty paid on various raw materials received from M/S. HSAL on the basis of the invoices only, without actually receiving the inputs - Whether in view of the gross violation of principles of natural justice and lack of adherence to the procedure under Section 9D, the matter be remanded back to the adjudicating authority for de no adjudication, as held by member (Technical)? - Difference of opinion - majority order. Held that: - Reliance placed in the case of Ambika International Vs. Union of India and Another's [2016 (6) TMI 919 - PUNJAB AND HARYANA HIGH COURT], where Hon’ble High Court has clearly ruled that if the person whose statement has already been recorded is to be examined before the adjudicating authority and if the adjudicating authority arrives at a conclusion that the statement deserve to be admitted in evidence then the question of offering the witnesses to the assessee for cross-examination arise. The witnesses whose statement were recorded were not examined by the adjudicating authority - such examination-in chief was not conducted by the original authority and therefore, the question of cross-examination does not arise. Therefore, no purpose shall be achieved by remanding the matter back to the original authority for denovo adjudicating. Further, the allegation against M/s.BSPL were that they did not receive inputs but availed the cenvat credit only on the strength of invoices without receipt of inputs. The admitted facts are that the appellant, M/s. BSPL had manufactured the goods and paid Central Excise duty on the same and there are no investigation as to from where the inputs were procured by M/s. BSPL for manufactured of goods, if they had received only the invoices and no inputs from M/s.BSPL is established in proceedings - The appeal filed by the assessee is to be allowed. In view of the majority order, the appeal filed by M/s Bhupendra Steel Pvt. Ltd. is allowed and the appeal filed by the Revenue is rejected.
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