TMI Blog2015 (5) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... gorically stated that the goods were transported through the agents/broker of the transporter and the vehicle numbers were mentioned in the invoices at their instance. In such situation, MODVAT Credit cannot be denied merely on the basis of report of RTO. - denial of MODVAT Credit alongwith interest and imposition of penalties cannot be sustained on merit, without going into the submission on limitation of the Appellants. Accordingly, the impugned order is set aside - Decided in favour of assessee. - Appeal No. E/7,234/2010 - Order No.10467-10468/2015 - Dated:- 1-5-2015 - Hon ble Mr. P.K. Das, Member (Judicial),J. For the Appellants : Shri Vishal Agarwal, Shri P.K. Shetty, Ms. Dimple Gohil -Advocates For the Respondent : Shri G. P. Thomas, Authorised Representative ORDER Per: P.K. Das 1. These appeals are arising out of a common order and therefore, both are taken up together for disposal. 2. The relevant facts of the case, in brief, are that M/s SM Energy Teknik Electronics Ltd (Appellant No.1) was engaged in the manufacture of Industrial Machineries, classifiable under Chapter 84 of the Schedule to the Central Excise Tariff Act, 1985. On 12.04.1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O in respect of 11 invoices out of 66 invoices. The Commissioner (Appeals) in earlier remand order directed the cross examination of the transporters, which was not allowed. He submitted the written submissions and the compilation of case laws. 5. The learned Authorised Representative on behalf of the Revenue reiterates the findings of the Commissioner (Appeals). He submits that MODVAT Credit was denied on the basis of evidence to the extent of the report of RTO that the vehicle numbers mentioned in the invoices are incapable to carry of such huge quantities of the material. He submits that in the instant case, both the authorities below has given a clear finding that the cross-examination is not necessary. He relied upon the various case laws as mentioned in the impugned order. 6. After hearing both the sides and on perusal of the records, I find that by the OIO dt.26.08.2004, the Adjudicating authority confirmed the demand of MODVAT Credit alongwith interest and imposed penalty of equal amount on Appellant No.1 and also imposed penalty on the Appellant No.2 and others. By OIA No.Commr(A)/094 to 098/VDR-II/2005, dt.29.03.2005, the matter was remanded to the original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative of the Appellant office situated at Mumbai. The representative of Mumbai office of the Appellant used to be in touch with the transport broker and he used to send one of the representatives to their godown and the transport broker used to send the lorry hired by him and after inspection and loading of the goods in front of the representative of the Appellant the goods used to be transported as per the instruction of the said representative of Appellant of the Mumbai office. The transport broker used to instruct the lorry driver and the transport company. Since the instruction to the transport broker was that they shall co-ordinate directly with the lorry owners/the transport companies and that he shall present to them copies of freight bills and lorry receipts in order that their accounts department of M/s Prakash Steel shall make the payments and therefore it is possible that in some cases the broker might have arranged local lorries for transportation of the goods and given the freight bills/lorry receipts of other transport companies. In order to get the payments from their accounts department, it is possible that since many of the small lorry owners did not prepare lorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used may adopt cross examination as the only mode of explanation or commenting or demolishing the materials collected against him. The right of cross-examination is normally regarded as forming part of natural justice unless sufficient reasons are recorded. It is also seen that the persons viz. (i) Shri Manohar Naik, Executive Director of the appellants' unit (ii) Shri Mumtaz Ali, in-charge of M/s. Star Transport Corporation (iii) Shri Govind Vishnavi, incharge of M/ s. New Satyapur Transport (iv) Shri M. Insaf Hussain whose statements had been relied upon by the department, had retracted their individual statements immediately after the statements were recorded under Affidavits duly notorized. It is also fact on record that there is nothing on record or in findings of the lower authority that these affidavits were not received by the department. Moreover, there is no finding of Adjudicating Authority about the retracted statements or the affidavits inspite of specific submission of the appellants in reply to show cause notice . 10. In de-novo adjudication, the Adjudicating authority had not granted cross-examination. By the impugned order, the Commissioner (Appeals) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that the statement dt.31.08.1999 was retracted by him on 02.09.1999. In any event, the statement of the Executive Director is contrary to the evidences and therefore, such statement cannot have any evidentiary value. 12. The Revenue also relied upon the report of RTO. It is submitted that the RTO report is related to only in inspect of 11 consignments (covers 6 different vehicle numbers) out of 66 consignments. It is also submitted that in 5 of the 6 instances, were RTO report had been called for, the vehicle nos. in respect of which the report was being called for, was different from that mentioned in the invoices. 13. After considering the overall facts and circumstances of the case and the evidences, I find that there is no dispute in the Central Excise invoices are genuine and the goods were cleared from the supplier of inputs accompanied with Central Excise invoices. It is evident from the statements of the supplier of inputs that the goods were transported through the broker/transporter. The statements of the transporters were heavily relied upon, but they did not turn up for cross-examination and therefore, such evidence cannot be relied upon. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consumption of power like electricity, seizure of cash, etc., the Tribunal noted and held that there was nothing to bank upon except the bare confessional statements of the proprietor and of some of the persons connected with the manufacturing activities and such statements were retracted within no time of their recording. The Tribunal also noted the fact that the requisite opportunity of cross-examination was also not made available so as to bring to the fore the true picture and therefore, it concluded against the Revenue observing that not permitting the cross-examination of a person in-charge of records of M/s. Sunrise Enterprises and absence of other cogent and positive evidences, would not permit it to sustain the demand of ₹ 1.85 Crores raised in the Demand notice and confirmed by both the authorities below. 16. In the present case, it was found that the input supplier supplied input accompanied with Central Excise invoice. There is no dispute of genuinity of invoice. It is clearly evident from the statement of input supplied by the transporter. In such a situation, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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