TMI Blog2018 (5) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty - difference of opinion - Held that: - As there are difference of opinion between the Members, therefore, the matter is referred to the the Hon'ble President to appoint third Member to resolve the issue:- Whether the Member (Technical) is correct in holding that the matter is required to remanded back to the adjudicating by following the provisions of Section 9D and thereafter pass appropriate orders - matter referred to Third Member. - E/2745-2746/2005-Ex(DB) - IO/E/39-40/2018-EX[DB] - Dated:- 23-1-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri B. L. Narsimhan, Advocate for the appellant Shri G. M. Sharma, AR for the respondent PER: ASHOK JINDAL The appellants are in appeal against the impugned order demanding duty along with interest and imposing penalties on both appellants. 2. The duty has been confirmed against the main appellant as under: SI. No. Description Duty Demand (i) Denial of credit on inputs received from ChemplastSanmar (13 invoices) 10/29,387 (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VC resin arranged for transportation from the nearby tempo stand and accompanied the goods. The goods were physically accompanied by their employee, therefore, they did not indicate in the lorry receipt. He submits that the said goods were physically received in their factory and duly entered in their records like gate register, bill for payment of freight, RG 23A Part I register and the payments were made through account payee cheque proves physical receipt of the goods. He submits that the fact of delivery of inputs was also admitted by the transporter Shri Vinod Gupta in his cross examination. He further submits that in one of the case of such transaction, the Commissioner has himself dropped the demand which proves that the reliance placed on the statement of the transporter was irrelevant. He submits that the duty cannot be demanded merely on the basis of the statement of the transporter that he did not transport the goods when the goods have been duly entered in their records, therefore, the credit cannot be denied. To support his contention, he relied on the decision Neepez Steels Ltd.-2008 (230) ELT 218 (P H) which has been followed in the case of Pioneer Industries- 2014 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destine removal of the goods. The allegation of the Revenue is that the appellant received unaccounted knitted fabrics from M/s. Roongta Textiles, Ankleshwar and relied on the statement of Mr. Rajeev Porwal, a transporter. It was also alleged that the appellants neither received unaccounted PVC resin from M/S, B B Trading and M/s. Poonam Plastics nor these inputs were used for removal of finished goods clandestinely. This allegation is based on the documents like loading slips and freight bills maintained by the transporter. He submits that the adjudicating authority has denied the cross examination of Shri Rajeev Porwal, therefore, his statement cannot be taken as evidence and denial of cross examination is the gross violation of the principles of natural justice in the light of the decision of the Ambika International and Flevel International and Vishnu Co. With regard to the unaccounted receipt of knitted fabric, the reliance placed on the statement of Shri Rajeev Porwal is erroneous. He submits that the entire quantity of knitted fabric received from M/s. Roongta Textiles have been duly accounted for. The reliance placed on the statement of Shri Rajeev Porwal is not correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory of the appellants, His submission is that the GRs having the same number and name of the consignor but vehicle numbers were different in each case. He also submits that weighment slips on record to establish that the inputs have been received by the appellants. He submits that the finished goods have been cleared by the transporter and his statement is placed on record. Therefore, the impugned order is to be upheld. 8. Heard both sides. 9. On careful consideration of the submissions made by both sides, we find that the demand has been confirmed on two counts: non receipt of the inputs by the appellants and receipt of the inputs without cover of the invoices and non-accountal of the goods in the statutory records and the same were used in manufacturing of final goods which were cleared clandestinely. Issue No. 1 10. We have seen that the credit sought to be denied merely on the ground that the transporters whose vehicle numbers have been entered in the invoices found non- existence or having made statement that they have not transported the goods. It shows that the sole ground for denial of credit is based on the transporter's statement. No other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.2 are, therefore, clearly liable to be set aside. 11. Therefore, we hold that apart from the statement of transporter, no corroborative evidence has been produced by the Revenue. The said statement has not been examined in chief, therefore, in view of the decision of the Hon'ble Punjab and Haryana High Court in the case of Ambika International, the statement of the transporter cannot be relied without examination in chief of the same by the appellants. 12. We further take note of the fact that the investigation and the matter was started in the year 1999 and thereafter the show cause was notice issued in 2002. After lapse of 17 years, if the matter is remanded to the adjudicating authority that will not serve the purpose as held by the Hon'ble Delhi High Court in the case of Flever International (supra) wherein the Hon'ble Delhi High Court as observed as under: 58, The Court is not inclined to consider the plea of the respondent that the matter should be remanded for a fresh consideration by the CES TAT. In the first place, it must be remembered that the search operation in this case took place way back in 1992. The long drawn process of adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r earlier statements. 43. It is not a matter of mere coincidence that none of the witnesses who were cross-examined stood by their earlier statements. It is one thing to overlook this feature on the premise that a// of them were under the pressure and control of the noticees. The other approach is to view this with some caution and ask what might be the case if the remaining witnesses were also produced for cross-examination? Importantly, what would be the prejudice caused to the noticees, in such circumstances, by their non-production for cross-examination? Thus a doubt is created in favour of the noticees when such witnesses do not turn up for cross-examination. It is the latter approach that has weighed with the CES TAT. That, in view of this Court, was a possible approach and does not render its order perverse on that score. 14. Therefore, we hold that the credit cannot be denied to the appellant. Issue No. 2 15. We find that it is alleged against the appellants that they have received the goods from M/s. Roongta Textile without cover of invoices and the same has been used in the manufacture of final products which have been cleared without payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-chief, allowing the cross-examination, is a futile exercise. We further find that the appellant have challenged the impugned order on the ground that the evidence in the form of statements gathered have no link of the appellant to the activities took at Sandeep Poultry Farm which is required to be examined on the basis of records available during the course of adjudication and the same has not been considered judicially. 17. We also take note of that in the case of Kuber Tobacco India Ltd. (supra) in a similar set of facts, this Tribunal has observed hereinabove. Similar view was taken by this Tribunal in the case of Alliance Alloys Pvt. Ltd. (supra). 18. In view of the above observation, we hold that the credit cannot be denied to the appellant and no demand can be confirmed against the appellant on account of clandestine removal of the goods. Therefore, the impugned order is set aside and the allowed the appeals with consequential relief, if any. (Pronounced in the open court) (Devender Singh) Member (Technical) (Ashok Jindal) Member (Judicial) Per: Devender Singh While I agree with the findings given in para 10 and 15 by the Ld. Member (Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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