TMI Blog2009 (8) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... ayur Shroff, Manoj Sanklecha, K.I. Vyas, N.D. George, P.M. Dave, Navin Mallick, for the Appellant. Shri J.S. Negi, SDR, for the Respondent. ORDER After dispensing with the condition of pre-deposit of duty confirmed against M/s. Nico Extrusions Pvt. Ltd and penalties imposed upon the appellants and other dues confirmed against some of the appellants, we proceed to decide the appeals itself, inasmuch as we find that the impugned order stand passed in gross violation of principles of natural justice. 2. As per facts on record, M/s. Nico Extrusions Pvt. Ltd are engaged in the manufacture of Aluminium alloy ingots, copper zinc base alloys, copper-nickel alloys, copper ingots etc. They were availing the benefit of Cenvat credit of duty paid on inputs received by them from various indigenous buyers as also imported raw material. The dispute relates to the Cenvat credit so availed by them. The Commissioner has come to a finding that such credit has been availed by the appellant without actually receiving input in question. 3. It is seen that during the course of investigation, statements of various transporters were recorded which are to the effect that they never transporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant about the same. As such, submits the learned advocate that without dealing with the request for cross-examination and intimating any decision on the same, the adjudicating Authority proceeded to pass the impugned order within a period of 4 days of their making such request. Drawing our attention to the findings of the adjudicating authority, he submits that the entire case of the Revenue is based upon the statements of the transporters, drivers and vehicle owners, in which case, it was necessary for the adjudicating authority to allow the cross-examination, so as to test the veracity of the statements so made. 6. Further arguing, the learned advocate Shri C. Harishankar submits that there is nothing on record to show as to where the inputs purchased by the appellant have been disposed off, if the same have not been received by the appellant. He further submits that such receipt of the inputs was duly reflected in their record and same have been consumed in the manufacture of their final product which was cleared on payment of the duty. Revenue has not produced any evidence to show as to from where they have procured such huge quantum of input, so utilised by them. He submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in case of Sitaram Sao v. Rajasthan State-IX - (2007) SLT 525, stand reproduced. For better appreciation, we reproduce the relevant paragraph from the above judgment. This finding of the Commissioner, unfortunately, entirely mis understands the very concept of corroboration . In its recent decision in Sita Ram Sao v. State of Rajasthan, IX (2007) SLT 525, the Hon ble Supreme Court pithily encapsulated the idea of corroborative evidence, in the following words : 22. The Word corroboration means not mere evidence tending to confirm other evidence. In DPP v. Hester - (1972) 3 All ER 10.16, Lord Morris said : The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible....... There can be, therefore, no corroboration of evidence, which is itself unworthy of credence. Applying this principle to the present case, once the statement of Mr. Unnikrishnan was found to be unworthy of credence, while deciding the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 (Tri.). 10. It stand further contended before us that even as per the Revenue s case, no goods were actually transported, in which case no penalty can be imposed under Rule 26 on the transporters in terms of the declaration of law by the Larger Bench decision in case of M/s. Steel Tubes of India Ltd. v. CC Ltd. - 2007 (217) E.L.T. 506 (T). 11. In respect of Director of M/s. Nico Extrusions Pvt. Ltd, it stand contended that no findings against him are recorded by the adjudicating authority. Further, some of the buyers have sold the goods on high-sea sale basis and have challenged the imposition of penalty upon them on the ground that they have sold the goods on high sea sale basis, they cannot be held responsible for the subsequent use of the same. Imposition of penalties also stand challenged on the ground that the proposal in the notice was under different Rules whereas the penalties actually stand imposed under different rules. 12. Learned SDR appearing on behalf of the Revenue, has strongly contended that denial of cross-examination has not resulted in breach of natural justice inasmuch as Hon ble Supreme Court in case of M/s. Kanungo Co. - 1983 (13) E.L.T. 1486 (S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of statements, which do not stand accepted by the assessee, who have sought cross-examination of the deponents, cannot be held to be corroborative of each other, as observed by the Tribunal in the above referred judgment of R.K. Tomar, relying upon by Hon ble Supreme Court s decision in case of Sitaram Sao. 14. We also note that even where the transporters have admitted having transported the goods, the duty stand confirmed by the adjudicating authority. We note that in similar sets of facts and circumstances, the Tribunal in case of M/s. Metal Gems Ors. v. CCE, Daman as reported in 2008 (08) LCX 0038, has remanded the matter by observing that if the Revenue intends to rely upon the statements of various persons, it was obligatory for the adjudicating authority to have offered the said witnesses for cross-examination. It was further observed in Para 7 of the said judgment as under : We also find prima-facie force in the appellant s stand that in the absence of identification of any buyer of the raw materials and any supplier of the scrap used for substituting such raw material and on the face of the fact that the Revenue s case mainly based upon the non-entry of transport ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
