TMI Blog2023 (2) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME COURT] , was dealing with a case where the assessee had not been allowed cross examination of the witnesses by the adjudicating authority though the statement of those witnesses were made the basis of the impugned order. It was held by Supreme Court that not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. The authority concerned is seeking to rely upon certain statements following the various decisions of this Court, the dialect of which is not necessary and the decision of the Apex Court is sufficient enough to bring to the fore the requirement of permitting the cross examination of witnesses whose statements are sought to be relied upon by the authorities - the order impugned passed by the authority concerned deserves to be quashed and set aside. Let t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated with M/s.Gyscoal Ltd., to facilitate M/s. Gyscoal to avail ineligible cenvat credit. 2.3 The entire Show Cause Notice is based on the Statements recorded under Section 14 of Central Excise Act and the impugned order has confirmed the demand qua M/s.Gyscoal Limited on the basis of those statements which are not subjected to cross examination. 2.4 Further, looking to the date chart that the opportunity of personal hearing was only granted during nationwide lockdown. Copy of the said date chart are attached herewith. 2.5 A copy of show cause notice was provided without relied upon documents which were submitted upon the request by petitioner/s. Subsequently, the hearing was granted on 27.01.2020, 10.03.2020 (public holiday), 19.03.2020, 17.04.2020, 05.08.2020, 11.08.2020, 20.08.2020, which were physical hearing and during nationwide lockdown. The petitioners have replied their show cause notices prior to 11.08.2020. They have filed application for cross examination which are received by the respondent as per their affidavit in reply. 2.6 Except main noticee - M/s Gyscoal Alloys Ltd., an opportunity of hearing was not granted on 20.08.2020, whereas main noticees, as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Central Excise, Gandhinagar Commissionerate at Ahmedabad to verify the noting of directions on the file; (B) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside the decision of the Respondent no. 2 conveyed vide Order-In-Original no. AHMEXCUS-003- COM-027-28-20-21 dated 04/09/2020 (Annexure- A ), and be further pleased to direct Respondent no. 2, to allow the Petitioners to cross examine the persons whose statements are relied upon in the Show Cause Notice; (C) Your Lordship may be pleased to set aside the impugned Order in Original No. AHM-EXCUS-003- COM-027-28-20-21 dated 04/09/2020 direct de-novo adjudication by any other Commissioner or officer of rank equivalent to or upper to the rank than the rank of Respondent no. 2 and thereby transfer the matter for re-adjudication from Respondent no. 2; (D) Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Commissioner of CGST Central Excise, Ahmedabad, the 2nd Respondent herein, from initiating recovery proceeding based on impugned Order In Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. The Apex Court further held in paragraph 7 as under : 7. As mentioned above, the appellant had contested the truthfulness of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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