TMI Blog2017 (3) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... ard before passing of the impugned order - thus, there have been violation of the principles of Natural Justice and the provisions of Section 9D of the CEA, 1944 - appeal allowed by way of remand. - E/53938, 54157, 53939, 53937, 54158, 54912 & 55566/2014-EX[DB] - A/70198-70204/2017-EX[DB] - Dated:- 30-1-2017 - Mr. Anil Choudhary, Member (Judicial) And Anil G. Shakkarwar, Member (Technical) Shri Rajesh Chibbarr Advocate for Appeal Nos.E/53937 53938/2014, Shri Prabhat Kumar, Advocate for Appeal No. E/53939/2014 And Shri Tarun Chawala, Advoctae for Appeal No, E/54157, 54158/2014. Shri Rajiv Ranjan (Joint Commr.), A.R. for the Department Per Mr. Anil Choudhary : All these appeals arise from common Order-in-Original dated 30.05.2014 passed by Commissioner of Central Excise Customs, Ghaziabad. The issue for decision in these appeals is whether the impugned order is vitiated for lack of proper opportunity of cross examining the witnesses of the Revenue and also if the order have been passed in haste without adequate opportunity of hearing to the appellants herein. 2. The brief facts are that the appellant Sandeep Manufacturing Strips (SMS for short), locat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs on Shri Jai Bhagwan, the authorized person and defecto owner of Vasudev Udyog, ₹ 20 lakhs on Subodh Gupta, alleged Ex-Manager of SMS, ₹ 10 lakhs on Mukesh Chauhan, Ex-Accountant of SMS. Further, demand of ₹ 41,64,554/- was confirmed on Vasudev Udyog along with equal amount of penalty under Rule 25 of CER read with Section 11AC of the Act, demand of ₹ 2,32,94,419/- was confirmed against Mayank Metals along with equal amount of penalty, demand of ₹ 2,90,57,862/- was confirmed against Shivam Metals along with equal amount of penalty. 3. Being aggrieved the appellants are in appeal before this Tribunal. Learned counsel Mr Rajesh Chibber appearing for Shivam Metals and Vasudev Udyog have taken us through the order sheet and the impugned order in support of their grounds, that there have been miscarriage of Justice as neither the opportunity of cross examination have been provided nor any denial of cross examination was intimated, neither any date for personal hearing was fixed after the purported completion of cross examination, if any, and thus the impugned order is in gross violation of the provisions of the Act and the principles of Natural Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 persons have been sought to be cross-examined by Shri Pawan Agarwal proprietor of Mayank Metals, Sanjiv Gupta proprietor of Shivam Metals, Jai Bhagwan, authorized person of Vasudev Udyog and Sandeep Gupta, proprietor of SMS out of which four are co-noticees, 11 are suppliers of raw materials to M/s. SMS. In case of Arvind Kumar, labourer of SMS and Anil Sharma, Supervisor of Shivam Metals none of their statements/documents etc. have been relied upon in the SCN, the cross-examination would not suffice any purpose hence not allowed. In the case of 11 suppliers of raw material to SMS as detailed, the persons had already confessed of their involvement/role substantiated by the material evidence, further cross-examination in this regard would tantamount to reinvestigation and as such not allowed. Further recorded-as per existing provisions of law, since four persons named to be cross-examined are the co-noticees namely Subodh Gupta Manager of SMS, Pawan Agarwal proprietor of Myank Metals, Sanjiv Gupta proprietor of Shivam Metals and Jai Bhagwan authorized person and defacto owner of Vasudev Udyog, they cannot be compelled to appear as a witness to give evidence. The said persons-co-no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rietor of Shivam Metals on 28.03.2014, Jaibhagwan authorized signatory of Vasudev Udyog and one Gopal son of Shri Tejpal who is stated to be a driver. 4. The learned counsel also points out that the Hon'ble High Court in its final order dated 21/07/2015 in C.E.A. No. 130,131/2015 along with C.E.A No. 129 of 2015 have also recorded that it directed the appellants to produce the order sheet maintained by the Commissioner who passed the Order-in-Original. Supplementary affidavit is filed from which it is found that cross-examination of 22 witnesses was considered and allowed in part on 07.03.2014 wherein five of the persons were permitted to be cross-examined namely Mohd. Israr, Anil Kumar, Balram Srivastava, Yogesh Chandra Shukla and Gopal. Hon'ble High Court further recorded the finding, modifying the amount of pre-deposit, observing that there is no averment as to undue hardship. It was further observed that once the authority permitted the appellants to cross-examine the witnesses, the same should have been done unless further orders denying such cross-examination was passed. With these observations the High Court modified the stay order directing the appellants to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l hearing to them. 5. The learned AR. for Revenue have relied on the impugned order. On query from the Bench regarding the factual aspects as stated by the counsel s for the appellants and also brought on record, no objection was raised by Revenue in this matter. 6. Having considered the rival contentions and on perusal of the appeal records and the documents brought on record, we are satisfied that there is failure on the part of the learned Commissioner in giving intimation to the appellants as regards the persons in respect of whom the cross-examination was refused, secondly we also find that the cross-examination after being conducted in part of only four persons have been abruptly stopped without there being any recording in the order sheet why the learned Commissioner did not complete the process of cross-examination of the other persons as permitted by him. We also find that no notice was given to the appellants bloat the process of cross-examination have been stopped and or completed from the side of Revenue, neither any opportunities was given to the parties to file their final reply in the matter and consequently they were not heard before passing of the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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