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2021 (7) TMI 682 - AT - Central ExciseCENVAT Credit - duty paying documents - denial on the ground that the appellant company has availed CENVAT credit on the strength of fake invoices without actually receiving the goods in violation of the CENVAT Credit Rules, 2004 - demand based on statements made by the manufacturers and the Excise dealers - rejection of request for cross-examination of the persons whose statements have been relied upon - HELD THAT:- The entire proceedings have been initiated on the basis of statements made by the manufacturers and the Excise dealers which have been solely relied to conclude that the appellant has not received the goods. The appellants in the course of adjudication have been consistently demanding cross-examination of the witnesses whose statements have been heavily relied upon by the Department. The appellants have pleaded that the goods on which credit have been availed were duly received by them and duly accounted for in the statutory records and that payments have been made through banking challans. The request for cross-examination of the persons whose statements have been relied upon has been turned down on the ground that despite several opportunities given by the Department, those persons failed to turn up before the authorities. Identical observation has been made in para 3.12 of the other adjudication order dated 15.09.2017 - the reasons assigned by the authorities below to reject cross-examination is clearly unsustainable in legal parlance for the obvious reason that no adverse inference can be drawn against assessee whose statements are to be relied by the Revenue without ascertaining the veracity in the absence of cross-examination. The Tribunal in the case of M/S NIDHI AUTO PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA-I [2019 (6) TMI 899 - CESTAT ALLAHABAD], while relying on the ratio laid down by the Hon’ble High Court in the case of COMMISSIONER OF CENTRAL EXCISE, MEERUT-I, MEERUT & ANOTHER VERSUS M/S PARMARTH IRON PVT. LTD., BIJNOR. [2010 (11) TMI 109 - ALLAHABAD HIGH COURT] has held that when the Revenue does not allow cross-examination of any prosecution witness then Revenue cannot rely on the statement given by such prosecution witness for confirmation of demand. Appeal allowed - decided in favor of appellant.
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