TMI Blog2016 (2) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... law, therefore, same is set aside and appeal is allowed with consequential relief - Decided in favour of assessee - Excise Appeal No. 1318 of 2009 - FINAL ORDER NO. 53475 /2015-EX(DB) - Dated:- 16-10-2015 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. B RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri K K Anand, Advocate For the Respondent : Shri Govind Dixit, DR ORDER Per Ashok Jindal: The appellant is in appeal against the impugned order demanding duty along with interest and imposing penalty thereon. 2. This is a second round of litigation. In earlier round of litigation this Tribunal, remanded the matter back to the adjudicating authority vide order dated 23.6.92 with the following observations: 7.We have carefully considered the submissions made by both the parties and have perused the records and have carefully gone through the impugned order passed by the Principal Collector. The appellants have made out a serious grievance of the gross violation of principles of natural justice in as much as the statement of Smt. Jagbinder Kaur Bhatia having been fully relied by the learned Principal Collector, had not been furnished to them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person must necessarily depend on facts and circumstances of each case. The question of cross-examination will, therefore, have to be considered in the light of the law laid down by the Supreme Court in the case cited by the learned Counsel for the appellant. The fact that a statement is recorded under section 14 of the Central Excise and Salt Act, 1944 and, therefore, there is no need to permit cross-examination, is an assertion not supported by any legal authority. The adjudicating authority would have to consider the question of cross-examination in the light of the law laid down in Shadulis case (supra), If the adjudicating authority considers that it is not necessary to permit cross-examination, he is required to record reasons for not permitting cross-examination. In this particular case, the statement of Shri Dayachand recorded under Section 14 of the Central Excise and Salt Act, 1944 has been used against the appellant. Therefore, it follows that the statement of Shri Dayachand is incriminating in nature in so far as the appellants are concerned. They have a right to cross examine Shri Dayachand to disprove its veracity. Therefore, to completely rely on the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of show cause notice were also reportedly lost due to change of the Advocate. Commissioner specifically records that no original relied upon documents were available while he was deciding the case. 4. Learned advocate appeared on behalf of the appellant and submits that specific direction of the Tribunal has not been complied with wherein the Revenue was directed to supply a copy of the statement recorded during the course of investigation of Smt. Jagbinder Kaur Bhatia and cross examination of Shri Dayachand which has not been complied with. Moreover, all the records relating the case in hand, have been lost by the adjudicating authority and the documents are not available. Therefore, impugned order has been passed only on assumption and presumption and same is not sustainable in the eyes of law. Therefore, impugned order is to be set aside. 5. On the other hand, learned AR strongly opposed the contention of the learned Counsel and submits that learned Counsel Shri K K Anand, advocate for the appellant in various communication indicated particularly in his letter dated 28.09.2005 intimated that all the papers of the case were lying with the earlier counsel Shri Harbans Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipal Collector, while passing the order in original No. 35/89 dated 27.7.89, should be handed over to the party. (iv) To produce Shri Daya Chand, Supervisor for cross-examination. 9. Thereafter the adjudicating authority has passed the impugned order. We further observe that the learned AR strongly contended during the course of argument that as per letter dated 28.9.05, a communication by the present counsel of the appellant with the department intimating that all the papers of case were lying with earlier counsel late Shri Harbans Singh and his client did not succeed to get the same. From this, the learned AR drew the conclusion from the said letter that statement of Smt. Jagbinder Kaur Bhatia in compliance with the order of this Tribunal dated 23.6.1992 has been communicated to the appellant. This stand of the learned AR is contrary to the records as Misc. application No. 52/07 filed by the Revenue before this Tribunal wherein it is stated that, since the document ordered to be supplied by the Hon ble Tribunal while remanding the case can not be supplied to the party in the circumstances narrated above, the directions contained in the subject order of the Hon ble T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
