TMI Blog2017 (8) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... or grant of such opportunity to the appellant-assessee - appeal allowed by way of remand. - APPEAL NOS: E/85080 & 85081/2015 - A/92350-92351/2017 - Dated:- 4-8-2017 - Shri C J Mathew, Member (Technical) Shri SP Mathew, Advocate for appellant Shri Ahibaran, Additional Commissioner (AR) for respondent The assessee and its director, both aggrieved by the upholding of the order of the lower authority confirming recovery of wrongly availed CENVAT credit of ₹ 23,50,591, along with interest, and imposition of penalty against both in order-in-appeal no. PD/802-803/THII/2014 30 th September 2014 of Commissioner of Central Excise Service Tax (Appeals-IV), Mumbai, are in appeal here. The recovery was ordered on a finding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of section 9D of Central Excise Act, 1944 held that 17. In the present case, it is an admitted fact that the respondent Department is placing considerable reliance on the statements of Mr. Shyam Lal and Ms. Preeti, the partners of the importer, in support of the case made out in the SCN. The impugned order of the AA does not indicate that any prejudice would be caused to the Department by providing the petitioner the right of cross-examination. On the other hand the denial of such right would prejudice the petitioner since the said statements are adverse to the petitioner. In the circumstances, the denial of the petitioner's right of cross examination is held contrary to the law explained in Basudev Garg (supra). 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement, recorded before a Gazetted Central Excise officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(l). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(l) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise officer, unless and until he can legitimately invoke clause (a) of Section 9D(l). In all other cases, if he wants to rely on the said statement as rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the truth of the contents thereof. 20. Reliance may also usefully be placed on Para 16 of the judgment of the Allahabad High Court in CCE v. Parmarth Iron Pvt Ltd., 2010 (260) ELT 514 (All.), which, too, unequivocally expound the law thus: If the Revenue choose (sic chose?) not to examine any witnesses in adjudication, their statements cannot be considered as evidence. 21. That adjudicating authorities are bound by the general principles of evidence, stands affirmed in the judgment of the Supreme Court in CC v. Bussa Overseas Properties Ltd., 2007 (216) ELT 659 (SC), which upheld the decision of the Tribunal in Bussa Overseas Properties Ltd. v. CC, 2001 (137) ELT 637 (T). 6. In view of the above, the pleading be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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