Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (4) TMI 434

produced by the Revenue. The said statement has not been examined in chief, therefore, the statement of the transporter cannot be relied without examination in chief of the same by the appellants - further it is noticed 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 - the credit cannot be denied to the appellant. - Clandestine removal - it was alleged that there was 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 - Held that:- No evidence has been produced by the Revenue to allege clandestine manufacture/removal of the goods how the goods were manufactured or from where the other raw materials were procured and how clandestine manufacture goods were transported and how the payment on the said goods have been received. In the absence of any corroborative evidence, except the statement of the transporter whose cross examination has not been granted .....

X X X X X X X

Full Text of the Document

X X X X X X X

nitted fabric and did not account for the same in the books of accounts relying on the documents maintained by a transporter. The matter was agitated by the appellant before the adjudicating authority but the adjudicating authority confirmed the above demands. (a) Denial of credit of ₹ 10,29,387 availed on PVC resin purchased from depot Chemplast. 3. Shri B.L. Narsimhan, Advocate, the learned Counsel appeared for the appellant and submits that the credit has been denied on the ground that the PVC resin was not received by the appellants in their factory. The adjudicating authority has held that the transporters have shown the lorry receipt are fictitious and the appellants fabricated the transport documents and wrongly availed credit on 13 invoices. He submits that the appellants were purchasing PVC resin from Chemplast Sanmar and for this purpose one of the their employees were deputed and the said person after purchase of the PVC 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

ination of Shri Rajender Singh owner of SR Freight Carriers was denied by the adjudicating authority. Therefore, the credit cannot be denied. (c) Denial of credit of ₹ 1,15,212 availed on PVC transported in own vehicle. 5. This credit has been denied on PVC resin transported in their own vehicle on the ground that the inputs were not received and the appellant s vehicle were used for other purposes during the relevant period. He submits that there was actual purchase of PVC resin from Chemplast Sanmar and the inputs were physically received in the factory as is evident from the gate register, bill for payment of freight, RG 23A Part I register, and payment to Chemplast Sanmar, therefore, the credit cannot be denied. (d) Demand of duty of ₹ 33,69,797 on the basis of alleged clandestine removal of final products. 6. This demand has been confirmed against the appellant on the allegation of clandestine 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 unacco .....

X X X X X X X

Full Text of the Document

X X X X X X X

cle numbers shown in the invoices were different in which inputs were transported from Cemplast Sanmar to the factory of the appellant and on investigation it was found that either transporter was not available at the given address or vehicle number was different. He submits that on enquiry from the RTO, it was found that the vehicle numbers mentioned in the invoices are of two wheeler. In that circumstance, the contention is that the appellant has not received inputs, therefore, the demand is rightly made. With regard to the demand on the basis of clandestine removal of the goods, the appellant has received knitted fabric from M/s.Roongta Textiles which was not accounted for in the statutory records. His contention is that the owner of Singhal Express Carriers has specifically mentioned the goods cleared from M/s.Roongta Textile in the name of various parties M/s.Madhu Textiles, etc. to the factory 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 finis .....

X X X X X X X

Full Text of the Document

X X X X X X X

the said Orders-in-Original, placed extensive reliance on the statements, recorded during investigation under Section 14 of the Act. He has not invoked clause (a) of sub-section (1) of Section 9D of the Act, by holding that attendance of the makers of the said statements could not be obtained for any of the reasons contemplated by the said clause. That being so, it was not open to Respondent No.2 to rely on the said statements, without following the mandatory procedure contemplated by clause (b) of the said sub-section. The Orders-in-Original, dated 19/05/2016 and 01/06/2016, having been passed in blatant violation of the mandatory procedure prescribed by Section 9D of the Act, it has to be held that said Orders-in- Original stand vitiated thereby. 32. The said orders-in-Original, dated 19/05/2016 and 01/06/2016, passed by Respondent 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

a rule of prudence, some corroboration of such retracted statement by some other reliable independent material. This is the approach adopted by the CESTAT and the Court finds it to be in consonance with the settled legal position in this regard. 42. The contention that it is the responsibility of the noticees to produce the witnesses for cross-examination is a strange one considering that they are witnesses of the Department and that their statements are being relied upon by the Department in support of the SCNs. Since it is relying on such statements, it is the responsibility of the Department to ensure their presence for cross-examination. As already mentioned, whenever such witnesses (i.e. six of them) were produced for cross-examination they resiled from their 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 all 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-examinati .....

X X X X X X X

Full Text of the Document

X X X X X X X

) and Flevel International (supra) and Vishnu & Co. (supra), the demand on account of clandestine removal of the goods is not sustainable. Accordingly, the same is set aside. 16. We also take note of the fact that in the case of Kuber Tobacco India Ltd. (supra), this Tribunal has examined the issue in para 14 of the order which is reproduced as under: 14.In view of the above analysis, it is clear that during adjudication, the adjudicating authority is required to first examine the witness in chief and also to form an opinion that having regard to the facts and circumstances of the case, the statements of the witness are admissible in evidence. Thereafter, the witness is offered to be cross-examined. In the absence of examination-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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

ity would pass a reasoned and speaking order in the matter in accordance with law. Devender Singh Member (Technical) 21. 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 following issue :- POINTS OF DIFFERENCE (a) Whether, Member (Judicial) is correct in holding that in light of the decision of Hon ble Delhi High Court in the case of Flever International (supra), no purpose will be served to remand the matter and the appeal be allowed. Or (b) 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. (Pronounced in the court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) Per Bijay Kumar: Heard the Ld. Advocate, Mr. B.L. Narsimhan, on behalf of the appellants and the Ld. A.R., Mr. G.M. Sharma, on behalf of the Revenue. 2. The following points of difference have been placed for consideration before me: (a) Whether the Member (Judicial) is correct in holding that in light of the decision of Hon ble Delhi High Court in th .....

X X X X X X X

Full Text of the Document

X X X X X X X

f any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub- section (1) shall, so far as may be, apply in relation to- any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 8. The issue regarding compliance of mandatory provisions of Section 9D have been discussed by various Courts/Tribunals in many cases where it is held that the compliance to the provisions of Section 9D is mandatory and non-negotiable an .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||