TMI Blog2017 (9) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to record a specific finding, which is conspicuously absent. Matter remanded to CESTAT, Madras to consider and record a specific finding, on the issues regarding cross examination - appeal allowed by way of remand. - CMA No. 2035 of 2017 and CMP No. 10923 & 12613 of 2017 - - - Dated:- 22-8-2017 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr. SR. Rajagopal For the Respondent : Mr. A. P. Srinivas JUDGMENT ( Order of the Court was delivered by S. Manikumar, J. ) Challenge in this Civil Miscellaneous Appeal, is to the Final Order No.41765 of 2016 dated 28.09.2016, by which CESTAT, Madras, has confirmed the orders of the original and appellate authorities, respectively. 2. Assailing the correctness of the order, Civil Miscellaneous Appeal has been filed, raising the following substantial questions of law. a) Whether, in the facts and circumstances of the case, the Hon'ble CESTAT has passed a cryptic and non-speaking order without showing any reasoning or deliberation of the materials that were placed before it for consideration; b) Whether, in the facts and circumstances of the case, the Hon'ble CESTAT had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be sufficient to establish non payment of duty and the respondent as well as the original authority erred in passing the impugned orders relying on such statements. The appellants further submit that the statements of persons who did not appear for the cross-examination should not be relied upon. In this regard, the appellants rely on the following decisions. a) HMT Ltd., Ors. Vs. CCE C.Meerut reported in 2004(63) RLT 244 (CESTAT-Del.). b) Balbir Steel (P) Ltd., Vs. Commissioner of Central Excise, Kanpur reported in 1999 (114) ELT 561 (Tribunal). At page 15 of the impugned order, the respondent has referred to the statement of Shri Maria Selvam, the driver of vehicle 31J3093. However, Shri Maria Selvam failed to turn up for cross-examination and consequently his statement has to be discarded. The respondent also has drawn a conclusion that the persons who gave statements have not retracted their statement subsequently and only during cross-examination they have reversed their stand. The respondent has wrongly concluded that none of the deponents who were cross-examined denied what they have already stated in their statements given before the officers dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were the basis of show cause notice, being made available for cross examination in adjudication proceedings, the burden of proving that the Respondent-assessee was liable has been discharged. 3. Whether the charges against the Appellant stands proved in the absence of the witnesses, whose statement were the basis of charge, not being available inspite of summons under Sec 40 of the Act issued by the Authorities and the Authorities not taking any positive step to ensure appearance. 9. In NGA Steels (P) Ltd., Vs. CESTAT, Chennai reported in 2016 (339) ELT 217 (Mad.), one of the contentions, made before the appellate authority was that there was a violation of principles of natural justice, in not permitting the appellant therein, to cross examine the persons from whom, statements were recorded. By observing that cross examination is not a matter of right, when burden of proof has been discharged by the department, the Commissioner of Central Excise (Appeals), the appellate authority rejected the contention. When the matter reached CESTAT, Madras, one of the grounds raised therein was that when the department has mainly relied on the statement of third parties i.e. purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nabhan. These persons are said to be job workers, who have given statements with regard to the amount charged by them for carrying on the job work. The petitioner's specific request was to cross-examine these two persons. 13. The Department tried to justify the orders by filing a counter affidavit, extract of which is reproduced from Karan Traders' case [cited supra]. 8. From paragraph Nos.13 and 14 of the counter affidavit it is seen that the Department had sent summons to those two persons, namely, V.Kumaraswamy and S.Padmanabhan, to appear before the authority to enable the authority to afford the petitioners an opportunity to cross-examine those two persons. However, Kumaraswamy has received the summons and did not turn up for cross-examination. But the summons sent to Padmanabhan has returned as unserved on the ground that no such person was residing in the address mentioned in the summons. Thus, the respondent department was unable to produce those two persons for cross-examination. If that be the case, then the statements recorded from them should have been eschewed by the adjudicating authority and thereafter, the adjudicating officer ought to have proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout recording any findings of fact. On the facts and circumstances of the case, the Hon'ble Apex Court, while holding that it is not sufficient in a judgment, to give conclusions alone, but it is necessary to give reasons, in support of the conclusions arrived at, set aside the order of the Tribunal, holding that the findings recorded by the Tribunal therein, were cryptic and non-speaking, and remitted the matter to the Tribunal for taking a fresh decision, by a speaking order, in accordance with law, after affording due opportunity to both the parties. (iii) In Commr. of Central Excise, Bangalore-II v. Fitwel Tools Forgings (P) Ltd., reported in 2010 (256) ELT 212 (Kar.), a Hon'ble Division Bench of Karnataka High Court, at Paragraph 5, held as follows: After careful perusal of the order impugned, it is manifest on the face of the order that the Tribunal has committed a grave error in passing the order impugned without assigning any valid reasons and without any discussion. By merely following the order passed in similar matters, it has proceeded to pass the impugned order, allowing the appeal filed by the respondent. Hence, we are of the opinion that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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