TMI Blog2017 (12) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Commissioner of Central Excise, Coimbatore, takes notice. 2. Earlier, vide, final order No.41765-41766 of 2016, dated 28/9/2016, CESTAT, Madras, has dismissed the appeals filed by M/s. A S Textiles Limited, Tamil Nadu and Mr.Suresh Kumar Agarwal, Managing Director of M/s. A S Textiles Limited. 3. The company filed Civil Miscellaneous Appeal No.2035 of 2017, challenging Final Order No.41765/2016, dated 28/9/2016, on 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 committed serious infirmity in appreciation of evidence by overlooking material evidence vital to determination of issues involved; c) Whether, in the facts and circumstances of the case, the Hon'ble CESTAT had made patent error in confirming the demand without any corroborative or affirmative evidence. 4. Subsequently, C.M.P.No.12613 of 2017, in C.M.A.No.2035 of 2017 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 during investigation. The details of the cross-examination already mentioned in the previous paragraphs will be sufficient testimony to show that the earlier versions were no correct. It is to be noted that only when a witness is called upon to confirm the correctness of the statement made earlier and when he is subjected to cross-examination to find out the truth of the earlier statement, then only the factual position emerges. If what emerges during the cross-examination has to be denied all the time then the purpose of cross-examination is rendered meaningless. Since the outcome of the cross-examination is contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination of persons who gave statements against the appellant and which were relied on by the Dept. is mandatory? C. Whether the documents maintained by third parties and statements alone constitute sufficient evidence to come to the conclusion of clandestine removal of goods without payment of duty without any correspondent documents recovered from the appellant 10. After perusal of the order of CESTAT, impugned therein, a Hon'ble Division Bench to which one of us [Hon'ble Mr.Justice S.Manikumar] is a party, found that the plea regarding violation of principles of natural justice in not permitting the appellant to cross examine the persons from whom statements were recorded, has not been dealt with, and answered by the tribunal. 11. In NGA Steels (P) Limited's case [Cited supra], the learned counsel for the department was also not in a position to point out, as to whether CESTAT, Chennai has adverted to the said plea. Similar to the case on hand, learned counsel therein made submissions justifying orders of CESTAT. 12. In Karan Traders Vs. Joint Commissioner of C. Ex., Salem reported in 2016 (339) ELT 249 (Mad.), one of the questions, which came f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order levies Central Excise duty and the quantification for the job works has also been made, relying upon the statements given by those two persons. 10. It may be true that the impugned proceedings are not solely based upon those two statements. But nevertheless, those statements having been taken into consideration and those persons not having been available for cross-examination, this Court is of the view that the matter requires to be remanded for fresh consideration. 15. Going through the materials on record, we are of the view that the order of the Tribunal is a non-speaking order, with reference to what is claimed by the appellant and denied by the Department. At this juncture, we deem it fit to consider few decisions, on this aspect, (i) The Hon'ble Apex Court in HVPNL v. Mahavir reported in (2004) 10 SCC 86, while dealing with an order passed by the State Consumer Disputes Redressal Commission, held that the appellate forum is bound to refer to the pleadings of the case, submissions of the counsel, necessary points for consideration,discuss the evidence, and then to dispose of the matter by giving valid reasons. (ii) In Tata Engineering Loco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord a specific finding, on the issues regarding cross examination, within two months from the date of receipt of a copy of this order, after giving sufficient opportunity to both parties. Additional Substantial questions of law Nos.2 and 3 are answered in favour of the appellant. 8. Instant C.M.A.No.3247 of 2017 has been filed by the Managing Director, Mr.Suresh Kumar Agarwal, challenging the Final Order No.41766 of 2016, dated 28/9/2016 1. Whether the Hon'ble CESTAT was justified in upholding the penalty imposed on the appellant under Rule 26 of the Central Excise (No.2) Rules, 2001, when the categorical finding of the Commissioner (Appeals) is that there was no material on record to show personal involvement of the appellant? 2. Whether the Tribunal is justified in passing the final order without discussing or without giving a finding on the specific plea raised in the grounds of appeal that cross-examination of persons who gave statements against the appellant and which were relied on by the Dept. is mandatory? 3. Whether the documents maintained by the third parties and statements alone constitute sufficient evidence to come to the conclusion of clande ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
