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TMI Blog2023 (10) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Rules 2002, Rule 14 of Cenvat Credit Rules 2004 read with proviso to Section 11A(1) of Central Excise Act, 1944 along with interest under Section 11AB of the Act and also imposed penalty on appellant no. 1 of Rs. 1 lakh under Rule 13 of Central Excise Rules 2002 and also imposed penalty of Rs. 25,000/- on appellant no. 2 i.e. Sushil Jain under Rule 26 of the Central Excise Rules, 2002 & 2004. 2. Briefly the facts of the present case are the appellants are engaged in manufacture of Steel Tubes falling under chapter 73, of the 1st Schedule to Central Excise Tariff Act, 1985 and they are availing Cenvat Credit in respect of duty paid on the inputs used in the manufacture of finished goods as envisaged under Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appeal before the Commissioner (Appeals) who vide his order dated 29.03.2011 ("impugned Order") upheld the Order-in-Original. 6. Heard both the parties and perused the record. 7. Ld. Counsel Ms. Vrinda Bagaria, appearing for the appellant submitted that the impugned orders are not sustainable in law as the same has been passed without properly considering the evidence on record and the various decisions relied upon the appellant and cited before the Commissioner (Appeals). 8. She further submitted that the Commissioner (Appeals) has not considered the statements made by Sh. K.P. Khemka and Rupesh Bansal and Yashpal Sharma in its true perspectives. She further submitted that the appellant has given sufficient evidence in the form of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of other transactions which have no relation to the procurement of goods by the appellant from Steel mongers. She further submits that Ld. Commissioner has not recorded any finding on the evidence produced by the appellant to prove delivery of the goods. Further, the department has not been able to give any additional or independent evidence to prove the allegation of non-receipt of goods against the appellant. 11. She also submits that in the statement dated 09.02.2009, Shri Sushil jain, the authorized representative of the appellant has categorically stated that the disputed goods were received by them in the premises but the Commissioner (Appeals) has not paid any heed to the statement of Shri Sushil Jain and Shri Suresh Sharma, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest. 15. It is settled law in view of the decisions of Punjab and Haryana High Court in the case of Jindal Drugs Pvt. Ltd. V. Union of India [2016 (340) ELT 67 (P&H)] and G-Tech Industries V. Union of India [ 2016 (339) ELT 209 (P&H)]; cited (Supra) wherein it has been held in para 25 as under : "25. In the light of the above, respondent no. 2 is directed to adjudicate the show cause notice issued to the writ petitioners by following the procedure contemplated by Section 9D of the Act and the law laid down by various judicial authorities in this regard, including the principles of natural justice, in the following manner: (i) In the event that the Revenue intends to rely on any of the statements, recorded under Section 14 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to allow the said request, as it is trite and well-settled position in law that statements recorded behind the back of an assessee cannot be relied upon, in adjudication proceedings, without allowing the assessee an opportunity to test the said evidence by cross- examining the makers of the said statements. If at all authority is required for this proposition reference may be made to the decisions of the Hon'ble Supreme Court in Arya Abhushan Bhandar v. UOI, 2002 (143) ELT:25 (S.C.) and Swadeshi Polytex v. Collector 2000 (122) ELT 641 (S.C.) 16. Further, I find that the Ld. Commissioner (Appeals) has not considered the evidence namely RG-23C part I and the bank statements showing payment to transporter and the supplier. Further, dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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