TMI Blog2014 (9) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... ise officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contained, when the person who had made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. In view of the provisions of sub-section (2) of Section 9 D, the provisions of sub-section (1) of Section 9 D are applicable to the adjudication proceedings also and accordingly, as far as possible before using the statement of a person recorded under Section 14 of the Central Excise Act, 1944, against an assessee, that person must be examined by the adjudicating authority and if his cross examination is requested, the same must be allowed. in view of the provisions of sub-section 9D (2) of Central Excise Act, 1944, the cross examination of a witness, whose statement has been relied upon by the adjudicating authority is a must. Besides this, when the report of the RTO regarding the registration number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, these raw materials were being transported from the suppliers premises to the premises of PMS by using the services of the transporters viz. M/s. Gupta Transporters, M/s. Dashmesh, Batala, M/s. Diamond Road Links, Batala, M/s. Kaliga Transport Corpn., Batala and M/s. Baba Deep Singh Company, Batala. The PMS were taking cenvat credit of the raw materials received from the 14 suppliers mentioned above and according to them, they were sending the raw materials as such or after being processed to 24 job workers for processing further processing and return. M/s. Diamond Products India, M/s. Rajesh Products, M/s.Jheeta Industries, Shri Rajesh Steel Works, M/s. Kalia Industries, Shri Radha Steel Works, M.s Kaliga Transport, M/s. Doaba Factory, M/s. United India Insurance and M/s. K.K. Engineers are among the 24 job workers, who are supposed to have processed the raw materials supplied by M/s. PMS for manufacture of diesel engine parts. According to the PMS, they were clearing their finished goods on payment of duty for export under rebate claim and for payment of duty, the cenvat credit taken in respect of the raw materials was being utilized by them. The total cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Rules, 2002 read with Rule 15 of the Central Excise Rules, 2004 on the 24 job workers including M/s. Diamond Products, M/s. Rajesh Products, M/s Jheeta Industries, M/s. Shri Radha Steel Works Industries, M/s. Kalia Gears, M/s. Kalia Industries, Doaba Factory, M/s. United Engineers and M/s. K.K. Engineers and also on Shri Surjit Kumar Sahdev, Managing Director of the PMS. 1.4 The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 5.3.2013 by which the above mentioned cenvat credit demand was confirmed against PMS along with interest thereon under Section 11AB and besides penalty of equal amount on PMS under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11 AC of the Central Excise Act. Besides this, penalty was imposed under Rule 26 of the Central Excise Rules, 2002 read with Rule 15 of the Cenvat Credit Rules, 2004 on the job worker except M/s. Radha Steel Works. No penalty was imposed on Shri S.K. Sahdev on account of his demise on 16.07.2010. 1.5 Against the above order of the Commissioner, these appeals have been filed by PMS and 9 out of 24 job workers as mentioned above along with stay applications. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has resulted in denial of natural justice which has vitiated these proceedings and that on this ground itself, the impugned order would not be sustainable. He, therefore, pleaded that the impugned order is not sustainable. 5. Shri Amresh Jain, ld. DR defended the impugned order by reiterating the findings of the Commissioner and pleaded that all the 24 job workers including M/s. Diamond Products India, M/s. Rajesh Products, M/s. Jheeta Industries, Shri Rajesh Steel Works, M/s. Kalia Industries, Shri Radha Steel Works, M/s. Kalia Transport, M/s. Doaba Factory, M/s. United Engineers and M/s. K.K. Engineers have clearly stated in their respective statements that they had neither received any raw materials from PMS nor had sent any processed or finished goods to them and that the records regarding the job work for PMS were fabricated on the request of Shri S.K. Sahdev, that most of the job workers were not even capable of processing the materials which is claimed to have been processed by them, that two transport companies - M/s. Moonlight and M/s. Surya Processors, which according to the PMS have been used for transportation of the raw materials to the job workers and its return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhotra, Advocates, pleaded that as regards the allegation that some non-transport vehicles like two wheelers, and Maruti Cars are shown to have been used for transport of the raw materials from raw materials suppliers to the premises of the PMS, though the appellant had requested the department to furnish copies of the relevant reports from the RTO office, but the same have not been supplied. They also pleaded that substantial quantity of pig iron had been sent to the job workers for manufacture of the castings and another processes. 7. We have considered the submissions from both the sides and perused the records. 8. The claim of the main appellant - PMS is that they had received the raw materials for manufacture of diesel engine parts from 14 suppliers and bulk of the raw materials had been sent to 24 job workers for processing and return and by using the manufacturing infrastructure of their job workers they had got the diesel engine parts for export, which had been cleared on payment of duty. The 14 raw materials suppliers in their respective statements have supported the above claim of PMS and besides this, the transporters viz. Dashmesh Road Links, Gupta Transport Co., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable Sub-section (2) of Section 9 D provides that - the provisions of sub-section (1) shall, sofar as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. In view of the provisions of sub-section (2) of Section 9 D, the provisions of sub-section (1) of Section 9 D are applicable to the adjudication proceedings also and accordingly, as far as possible before using the statement of a person recorded under Section 14 of the Central Excise Act, 1944, against an assessee, that person must be examined by the adjudicating authority and if his cross examination is requested, the same must be allowed. The Hon ble Delhi High Court in the case of J K Cigarette Ltd. Vs. CCE reported in 2009 (242) ELT-189(Del.) and Hon ble Allahabad High Court in the case of CCE Allahabad Vs Govind Mills Ltd. reported in 2013 (294) ELT-353(Del.) have held that in view of the provisions of sub-section 9D (2) of Central Excise Act, 1944, the cross examination of a witness, whose statement has been rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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