TMI Blog2021 (8) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant craved for leave to cross-examine these witnesses but the request was turned down on the ground that the statements of the witnesses were voluntary and have not been retracted - the reason for denying cross-examination is not justified. Cross-examination is a most relevant tool of justice delivery system so as to undo the bias, if any. It is otherwise a statutory mandate flowing from Section 9D of Central Excise Act, 1944. The document recovered from the appellant premises shows that the appellant had maintained a record about the invoices received from various companies whereupon the appellant has availed the Cenvat Credit. Merely because the company issuing invoice was found non-existent, the appellant could not be denied the availment of Cenvat Credit thereupon unless and until his involvement in terms of his knowledge about such non-existence and about the invoice to be bogus is not proved on record. Otherwise also there is no denial that the appellant has cleared his final product on payment of duty - In such circumstances and that the invoices were containing all the particulars as are required un Rule 9 of Cenvat Credit Rules and that the appellant was also making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment alleged that during the period 2013-14 the appellant, one of the manufacturer, had availed improper Cenvat Credit amounting to ₹ 21,46,418/-on the strength of fake invoices issued by registered dealers as named above i.e. M/s. High Tides Infra Products Pvt. Ltd. etc. Based on said observations that a show cause notice bearing No.1301 dated 20th January, 2017 was served upon the appellants and the Cenvat Credit of the aforesaid amount proposed to be disallowed to the appellant. Interest was proposed to be recovered and appropriate penalties were proposed to be imposed. The said proposal was confirmed vide Order-in-Original No.02/Adj./2018 dated 18.04.2018. The appeal thereof was rejected vide the Order under challenge. Still being aggrieved the appellant is before this Tribunal. 3. I have heard Shri Bipin Garg, learned Counsel for the appellant and Shri Yashvir Singh, learned Authorized Representative for the Department. 4. It is submitted on behalf of the appellant that the order is liable to be set aside on the grounds of violations of principles of natural justice as no proper opportunity was given to the appellant to defend their case. Rather, their request for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th these submissions, appeal in hand is prayed to be dismissed. 6. After hearing the parties and perusing the record, I observe the hold as follows:- The basic information as was received by the Department was against M/s. High Tides Infra Pvt. Ltd. Various other co-noticees have been served with the Show Cause Notice based upon the statements recorded during investigation. The most relied statement is that of Pradeep Aggarwal, Proprietor of M/s. Subh Multi Trade Co. Pvt. Ltd. as was initially recorded on 01.10.2015 and subsequently on 19.02.2016 which was recorded before DGCI. The data as was received from his premises vide Panchnama dated 09.05.2015 has also been heavily relied upon by the Department. In addition to the reliance upon various other statements, statements of Shri Pankaj Aggarwal, Proprietor of M/s. Gajmukta Logistic have also been heavily impressed upon to have sufficient incrimination against the appellant. The admitted fact still remains is that these statements and the data amounts to a third party evidence. Another fact admittedly is that the appellant craved for leave to cross-examine these witnesses but the request was turned down on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty. No single document was found issued by the appellant nor there was a confessional statement of the appellant. In the present case, the Adjudicating Authority is thus, opined to have relied upon third party evidence only. It is also apparent that even the order of rejecting the request of cross-examination was no properly communicated to the appellant. Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence. The relevant case law in the case of Bajrangbali Ingots Steel Pvt. Ltd. Suresh Agarwal vs. CCE, Raipur in Appeal No. E/52062 52066/2018 heard on 16.11.2018, which is held as follows:- 9. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.) as also Tribunal s decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I 2016 (335) ELT 297 (Tri.-Del.), CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il his involvement in terms of his knowledge about such non-existence and about the invoice to be bogus is not proved on record. Otherwise also there is no denial that the appellant has cleared his final product on payment of duty. In such circumstances and that the invoices were containing all the particulars as are required un Rule 9 of Cenvat Credit Rules and that the appellant was also making the record of all those details. The allegations based on the statements given by other manufacturers, first or second stage dealers or even by the transporters cannot be read against the appellant. I draw my support from the decision of Hon'ble High Court of Allahabad in the case of Commissioner of Central Excise, Customs and Service Tax vs. Juhi Alloys Ltd. reported as 2014 (302) ELT 487 (All.) where it was held that though the invoice of manufacturer issued in the name of registered dealers was found fake, though the manufacturer of import was not found existing but it would be impractical to require the assessee to go behind the records maintained by the first stage dealer. Once assessee is found to have acted with all reasonable diligence in its dealings within the meaning of Rule ..... 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