TMI Blog2018 (1) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. This court while admitting the appeal on 04.10.2017 framed the following question of law:- Whether statement given by the foremen dated 07.12.2006 be used against the appellant without affording the opportunity of cross examining, while holding disallowance of cenvat credit of ₹ 10,27,545 and the statement of the properietor of the firm without considering the corroborative evidence as were available on record as such conclusion arrived at by the tribunal can aid to the proper? 3. Learned counsel for the appellant has take us to the order of first authority where in it has been observed as under:- (x). The noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Noticees Company. The noticees demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply. 4. Further he has taken us to clause 4 of the order of First Authority which reads as under:- (iv). The noticee submitted that Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials As CR Sheets, HR Sheets, M.S. Sheets of various thickness i.e. 2mm ot 100mm. I have visited their factory premises and saw all the process. The verification of raw material the Bills and Photograpsh are attached with the certificate. Place: Bhiwadi Date: 12.08.2008 Signature Seal of Chartered Engineer Name: A.K. Khanna Registration No: M-10672/91995 Registered with: Institute of Engineers (India) The certificate is dated 12/08/2008 while the period covered in this case is 2005-06 to 2006- 07. The certificate does not certify that the appellant was receiving coil below 10mm during the relevant period. 7. Counsel for the appellant has taken us to the various Judgments of Different High Courts wherein following principles have been laid down:- 2. In Commr. of C. Ex., Cus. and Ser. Tax, Daman vs. Nissan Thermoware P. Ltd., 2011 (266) E.L.T. 45 (GUJHC), it has been held as under :- 1. In this appeal Under Section 35G of the Central Excise Act, 1944 (the Act), the Commissioner, Central Excise, Customs and Service Tax, Daman has challenged order dated 25th March, 2009 2009 (246) E.L.T. 191 made by the Customs, Excise and Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and sold out in the open market in April to June, 1996 and had admitted the offence of illicit clearance committed by the Assessee. It was submitted that in the light of the aforesaid admission made on behalf of the Assessee which statement had not been retracted, the Department was not required to prove clandestine removal inasmuch as the facts stood admitted by the Assessee itself. In support of her submission, the learned Counsel placed reliance upon the decisions of the Apex Court in the case of Commissioner of C. Ex., Madras v. Systems Components Pvt. Ltd. : 2004 (165) E.L.T. 136 as well as in the case of K.I. Pavunny v. Asstt. Collr. (HQ.), C. Ex. Collectorate, Cochin : 1997 (90) E.L.T. 241 . Attention was also invited to the order made by the Commissioner (Appeals) to point out that the raw material of which there was shortage was a raw material which was required in large quantities whereas the other inputs were required in small quantity hence, it was not possible for the Assessee to manipulate the shortage of HD as the same was required in bulk. It was submitted that in light of the facts and circumstances of the present case, the Tribunal was not justified in gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with Under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab - : AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the Assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the Appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the Appellant wanted to cross-examine those dealers and what extraction the Appellant wanted from them. 7. As mentioned above, the Appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross- examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date was fixed on August 24, 2009. On September 17, 2009 the respondent wrote a letter to the Department asking for the copy of the relied upon documents and the statements of the witnesses. The next date fixed was September 24, 2009. On October 22, 2009 the copies of the statements and the relied upon documents have been provided to the respondent. On the receipt of such documents, the respondent filed the reply on November 17, 2009 and requested for cross-examination of the witnesses, whose statements were sought to be relied upon in the show-cause notice. The said request was within the reasonable time and cannot be said to be after unreasonable delay. November 20, 2009 was the date fixed. On November 19, 2009 again the request was made for giving the opportunity of cross-examination. On these facts, we are of the view that it cannot be said that there was any lapse on the part of the respondent. 6. It is a settled principle of law that if the authority wants to rely upon the statement of any witness, the opportunity of cross-examination ought to have been given to enable the party to prove its case. Non- providing of the opportunity of cross-examination amounts to violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the facts noted hereinabove, it is apparent that except for the admission on the part of authorised signatory, there is no other corroborative evidence to substantiate the allegation of clandestine removal against the respondents. The case of the revenue against the respondents is based upon the fact that though Anti-Static Oil sticks to the raw material so as to increase the weight of the finished product, there was no corresponding increase in the weight of the finished product. As per the opinion of the Technical Expert, the Anti Static Oil gets removed during the process of dyeing and twisting. Nothing has been brought on record by Commissioner to disprove the said technical opinion. In the circumstances, it is apparent that when the Anti Static Oil gets removed during the aforesaid process, there would not be any increase in the weight of the finished material. Insofar as the admission on the part of Shri Modi, the authorised signatory is concerned, a perusal of the order of the adjudicating authority clearly indicates that it was the case of the respondents that Shri Modi used to always create problems for their unit and that they had a strong suspicion that he even used t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri vs. Union of India, 2016 (339) E.L.T. 364 (GUJHC), it has been held as under :- 6. The only reasons given by the adjudicating authority for denying such cross-examination are that the witnesses have not retracted their statements. These statements made by the Customs authority which are admissible in evidence stand valid. He also opined that, in the notice he has not specified the facts which may be brought before the adjudicating authority subsequent to cross-examination of these witnesses if allowed. Both the reasons cited by the adjudicating authority are completely baseless. Merely because, the concerned witnesses have not retracted their statements would not be a ground to deny cross-examination. In fact, this reason does not even take care of the evidence of the expert witnesses. Further what material can the petitioner bring on record through cross-examination if so allowed, is simply not germane to the question of granting or not granting cross-examination. The adjudicating authority entered into an arena of presumption while refusing such request on such ground. 10. Commissioner of central excise vs. tejal dyestuff industries, 2009 (234) E.L.T. 242, it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In such a situation, we feel that the matter should be relegated to the Commissioner for holding fresh enquiry after considering the documents produced by the Respondent and recording the evidence wherever it is required. 12. CCE vs. Gujarat Cypromet Ltd. 2007 (345) E.L.T. 520 (Guj.), it has been held as under :- 6. In the facts and circumstances of the case, we are of the opinion that th Tribunal committed no error. Learned counsel Mr. Darshan Parikh was unable to counter the observations of the Tribunal taht such cross- examination was asked for during the course of adjudication proceedings itself. If that be the position, when the Revenue is placing heavy reliance on certain statements of the witnesses recorded during the course of investigation, without there being anything peculiar, the noticees were well within their right to seek cross examination. 9. Merely because the statements, according to the adjudicating officer, were recorded without threat, duress or coercion or that the witnesses at no stage retracted their statements, cannot be a ground for rejecting the request for cross-examination. 13. Commissioner of Central Ex. Cus., Surat V/s. Suresh Sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, in absence of any corroborative evidence brought on record by revenue, the findings recorded by CESTAT do not call for any interference. 9. I the aforesaid set of facts and circumstances of the case, none of the questions, as proposed in each of the tax appeals otherwise, can be termed to be substantial questions of law. The appeals are accordingly or dismissed. 15. Tejwal Dyestuff Industries V/s. Commissioner of C. Ex., Ahmedabad 2007(216) E.L.T. 310 (Tri, - Ahmd.) it has been held as under:- 4. The following defence submissions inter alia, were taken before the Commissioner : (a) Stock taking had not been done properly (b) The final product was not tested and therefore it was not open to the Department to rely on the secondary evidence (c) They produced along with their reply dated 23-3- 2005 technical opinion dated 13-3-2004 issued by Dr N.D. Jadav, Vadodara which support the case that LAB can be used in that manufacture. (d) The assessee had got their finished goods tested by extracting a small portion of 200 gms from the bag of seized goods and the test report so obtained clearly shows presence of LAB in the material (e) The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge handing over certificate is of 2008 whereas the period which is considered is 2005-06-07. 10. Taking into consideration he contended that the appeal deserves to be dismissed. 11. We have heard counsel for the parties. 12. The question which comes for consideration is where while considering the matter the statement which was recorded of the Foreman whether the assessee is entitled for cross-examination or not while disallowing the CENVAT credit, proprietor of the firm which was considered on the basis of evidence available on record. Taking into consideration the judgment of various High Courts and Supreme Court as reproduced above, we are of the considered opinion that the cross-examination is a right of assessee. In this case there is ambiguity in the statement of employee. 13. Since in the show cause notice there is difference in statements of Foreman and Proprietor which reads as under: 3(ii) Shri Naresh Singh, Foreman of M/s SPM in his statement dated 07.12.2006 (RUD-2) recorded on spot under Section 14 of Central Excise Act 1944, interalia stated that:- (a) He was the foreman of M/s SPM for the last 10 years. He looked after the entire production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he M.S. Plate to them M/s Garg Ispat Udyog Ltd. used to send them M.S. Plate equivalent to the amount of goods as shown in the respective invoice. (e) He used to contact Shri J.D. Gupta or his son Shri Manish Gupta for procurement of M.S. Plates. (f) He had been shown the Central Excise invoice no.740 dated 05.12.2016 of M/s Garg Ispat Udyog Ltd., Bhiwadi under which he had received M.S. Plates of 16MM thickness of 1580Kg. Only as against the H.R. Slitted Coils of 4.375 MT so mentioned in the said invoice. In his statement he accepted above said facts. 14. Thus, it is clear that the statement of Foreman requires cross-examination. 15. In that view of the matter, the issue is required to be answered in favour of the assessee and against the department. 16. The matter is remitted back to the Tribunal with a view to have a cross-examination of the Foreman. It will be open for the parties to cross-examine the Foreman. 16. We make it clear that we have not decided any other point accept cross-examination nor disturbed any finding of any authority. 16.2 Issue is to be decided not solely on the basis of owner statement without thoroughly considering the corrobor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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