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2019 (10) TMI 410

..... of opportunity to cross-examination - HELD THAT:- The original adjudicating authority has recorded that no request for cross-examination was at all made whereas Commissioner (Appeals) has justified the denial on the ground that the witness who were prayed to be cross-examined, their statements were never retracted rather the proposed demand and the duty liabilities thereof stands already discharged, that too, voluntarily. Law has also been settled that payment of duty under protest does not estoppes the assessee from challenging the illegality. The improved statements of the witnesses without them being cross-examined by the assessee cannot form the basis of confirming the demand against the assessee. Admittedly none of those witnesses are .....

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..... No. 51631 of 2018, 51950 of 2018, 52027 of 2018 [SM] - Final Order No. 51303-51305/2019 - 10-10-2019 - HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri Jayant Kumar & Shri Anirudh Samantarey, Advocates for the Appellant Shri K. Poddar, Authorised Representative for the Respondent ORDER RACHNA GUPTA: Present order disposes of 3 appeals, as the issue involved being common and appellants being the co-noticees. The details of three of these appeals are as follows:- Sl. No Appeal No. and name of appellant S.C.N. No. & Date Period Demand O-I-O No. & Date O-I-A No. & Date Remarks 1 Excise Appeal No. 51631 of 2018 [SM] M/s.Jagdamba TMT Mills Ltd. V(H) Adj.-1/CE-72/162/2012 Dated 23.12. 2012 2009-10 & 2010-11 ₹ 22,88,508/- .....

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..... K. Poddar, ld. Authorised Representative for the Department. 4. It is submitted on behalf of the appellant that passing of cenvat credit without actual delivery of goods is a positive act, which is required to be proved by tangible, direct reliable and affirmative evidences but the demand in this case is based only on some handwritten Ledger Accounts and slip-pads allegedly seized from the house of Mr. Baldev Raj Bhatia. It is impressed upon that the documents were collected from the appellants premises as well which rather prove that the goods were actually received by the appellant. It is further submitted that appellants made a request for cross-examination of witnesses whose statements have been relied upon by the adjudicating authority .....

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..... sses by the Adjudicating Authority: The statements of witnesses namely Mr. Jadish Lal Bhatia & Mr. Gulshan Bhatia both partners of M/s. Isha Enterprises were made the basis of the impugned order alongwith the documents as were recovered from the house of Baldev Raj Bhatia, a relative of above two witnesses. Admittedly neither both the witnesses were allowed to be cross-examined by the appellant nor the opportunity to confront those documents was given. I am of the opinion that same amounts to a serious flaw which makes the order under challenge nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. Even when the assessee disputed the correctness of the statemen .....

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..... pellants have fraudulently availed cenvat credit on such invoices along which there was no delivery of goods. This Tribunal in the case of M/s. Lloyds Metal Engineering Ltd. vs. CCE, Mumbai reported in 2004 (175) ELT 132 (Tribunal) has held that burden to prove the non-receipt of inputs is required to be discharged by Revenue by producing sufficient evidence. If there is no such evidence, credit availed on the basis of invoices issued by the Registered dealers cannot be denied on the ground that the transporters have admitted the fact of non-transportation of goods. It was followed in the case of M/s. Shri Jagadamba Castings Pvt. Ltd. vs. CCE, Bhopal Reported in 2006 (206) ELT 695 (Tri.-Del.). Tribunal Bangalore in the case of Veer-O- Metal .....

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..... on that the adjudicating authority has committed an error because the admission of the maker though can be used against the maker thereof but cannot be used against any other person, except after the said other person is provided an opportunity to cross-examine the maker of admission. As already discussed above, no such opportunity was provided. There seems no justification for remanding the matter to grant an opportunity to the appellants to cross-examine those witnesses because there is no other documentary evidence produced on record by the department to rebut the documents of appellants as that of invoices, GRs etc. which have presumption of correctness attached Annexure to show cause notice clarifies that the sole adjudication is based .....

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