TMI Blog2016 (9) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of non-receipt of inputs on which Cenvat Credit was taken, brings us to the conclusion that the entire case of Revenue is on the basis of presumption. We have also found that there is sufficient force in the arguments put forth by the appellants and the various case laws cited by him, are squarely applicable in the present case. Therefore, the impugned Order-in-Original is not tenable in law. - Decided in favour of appellant - E/917-920/09 - Final Order No. 70544/70547/2016 - Dated:- 29-6-2016 - Mr. Anil Choudhary, Member (Judicial), and Mr. Anil G. Shakkarwar, Member (Technical) Shri Bipin Garg Amit Awasthi, both Advocates for the Appellant (s) Shri Rajeev Ranjan, Joint Commr. (A.R.) for the Department ORDER These are four appeals, where the investigations were carried out together and a combined Show Cause Notice, details of which shall be available in subsequent paras, was issued. 2. On the basis of investigation, Additional Director General DGCEI, New Delhi issued Show Cause Notice vide File No.DZU/26/INV/2004 dated 31.8.2007 to above stated four appellants. The appellants are engaged in the manufacture of M.S. Ingots falling under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents recorded from the transporters, the appellants submitted before original authority that the transport company does not have their own vehicles but arranged the vehicles owned by others and they simply work on the commission and the Company, through whom the goods were transported, was not required to be registered with any Department. They further contested that in the statements recorded in respect of Shri Aatma Ram Khatri and Shri Sunil Khatri, it was nowhere admitted by them that they have not received the inputs. They further submitted that the department's case is based on statements. They had requested for cross-examination of 11 witnesses, out of 11 witnesses, Revenue could produce only four witnesses for cross examination. The appellant had filed a Writ Petition before the Hon'ble High Court of Allahabad for permitting the appellant to cross-examine, rest of the witnesses which failed to appear on the given date and subsequently original authority disallowed the cross-examination of them. The Hon'ble High Court of Allahabad dismissed the said Writ Petition of the appellant with the observation that in the event of prejudice caused to appellant, on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) The first and second stage dealer from whom the appellants have purchased inputs are registered with Central Excise and are regularly filing their statutory returns and at no point of time any question was raised about the correctness of the information submitted in those returns. (v) The appellants have purchased material at the prices lower than price at which dealers had purchased the goods because what was purchased by the appellant as inputs was waste and scrap of the material purchased by the dealers. (vi) The transportation of goods was arranged by Shri Dharmendra Sharma, an employee of the Company. It appears that the vehicle number was correctly communicated by him to the supplier but due to human error, the transporter has incorrectly mentioned the vehicle number in some of the invoices. (vii) The appellant had used 19 trucks and only in few cases, the vehicle numbers were wrongly mentioned which was a human mistake. (viii) During examination Shri Mahaveer Prasad Jain admitted that they were clearing M.S. Bars, Shapes, Sections to M/s. Bansal Structures Pvt. Ltd, M/s V. K. Enterprises and M/s Bhagwati Traders, after payment of Central Excise Duty. Further S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denied that the right of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the persons whose statements are being relied upon even in quasi judicial proceedings. The Division Bench also observed as under :- 29. Thus, when we examine the provision as to whether the provision confers unguided powers or not, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 He has further argued that the inputs were issued through statutorily required invoices and payments were made through banking channels. Therefore, on the basis of statements of transporters or drivers, the demand cannot be confirmed. He has therefore, prayed to set aside the impugned order. 6. Learned A.R. for the Revenue, has reiterated finding in the impugned order. He has stated that the original authority has accepted the statements of those witnesses, who did not appear for cross-examination, since the statements were recorded under Section 14 of the Act. On the basis of various statements, the Ld. Original authority has confirmed the demand, He has further pleaded that the impugned order is legal and proper and may not be interfered with. 7. We have carefully gone through the rival contentions. We have also gone through the order of the Hon'ble High Court at Allahabad, dated 18.12.2008 in Writ Petition No. 2304 of 2008, wherein it was directed that if prejudice is caused to the petitioners (appellants) on the basis of point which has been agitated, it is open to the petitioners to take the plea before the appropriate authority for adjudication. As submitted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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