2021 (9) TMI 1107 - HC - Central Excise

CESTAT decision upheld, penalties and duties set aside due to lack of cross-examination.

The court dismissed the appeal, upholding the CESTAT's decision to set aside penalties, duties, fines, and interest due to the significant flaw of not ... Clandestine removal - shortage and excesses of stock - sufficient evidence to establish the clandestine removal or not - excess of the recorded balance in RG1 register - cross-examination of witnesses - Penalty u/r 26 of CER - HELD THAT:- The Apex Court in Andaman Timber Industries Vs. Commissioner of C.EX., Kolkata-II [2015 (10) TMI 442 - SUPREME COURT] held that not allowing a party to cross examine witnesses of the Adjudicating Authority whose statement was the basis of the show cause notice to demand duty is a serious flaw in as much as it amounted to violation of principles of natural justice. It is noted that the Commissioner refused permission to cross examine Thakkar notwithstanding the request made by respondent nos.1 and 2. The permission to cross examine Thakker should have been granted mainly in view of the fact that appellant was relying on the statement of Thakkar and documents which were seized from Thakkar - the majority view is agreed upon that rejection of the request for cross examination of Thakkar would mean that Thakkar's statement cannot be relied upon. The Member (Judicial) has held without discussion that there is also no justification for imposition of penalty of ₹ 40 lakhs on Thakkar. The Member (Technical) has held that the penalty on Thakkar will also depend on the ultimate determination of penalty on respondent nos. 1 and 2. Penalty on Thakkar was not the subject matter of reference to the third member. Thus, question no.4 also in the affirmative. Questions are answered in the affirmative - Appeal dismissed. Issues Involved:1. Setting aside penalties imposed under Rule 26 of the Central Excise Rules, 2002.2. Setting aside central excise duties levied under section 11A(2) of the Central Excise Act, 1944.3. Reducing penalty imposed under section 11AC of the Central Excise Act, 1944.4. Setting aside fines imposed under section 34 of the Central Excise Act, 1944.5. Setting aside interest levied under section 11AB of the Central Excise Act, 1944.6. Setting aside penalty imposed under Rule 25 of the Central Excise Rules, 2002.7. Determining if the CESTAT order was based on no evidence or partly relevant/irrelevant evidence.8. Setting aside penalty imposed on a transport company under Rule 26 of the Central Excise Rules, 2002.Detailed Analysis:1. Setting Aside Penalties Imposed Under Rule 26 of the Central Excise Rules, 2002:The CESTAT set aside penalties of Rs. 5,00,000/- and Rs. 1,00,000/- imposed on an individual under Rule 26 of the Central Excise Rules, 2002, and Rule 209A of the Central Excise Rules, 1944. The court examined the basis for these penalties and found that the refusal to allow cross-examination of a key witness, Thakkar, was a significant flaw. The statement of Thakkar, which was crucial to the case, could not be relied upon without cross-examination, leading to the conclusion that the penalties were unjustified.2. Setting Aside Central Excise Duties Levied Under Section 11A(2) of the Central Excise Act, 1944:The CESTAT set aside the central excise duties of Rs. 4,16,73,971/- and Rs. 2,17,005/- levied for clandestine removal of processed fabrics. The court noted that the adjudicating authority's reliance on Thakkar's statement without allowing cross-examination was detrimental to the respondents. Without Thakkar's statement, there was no other evidence to support the claim of clandestine removal, leading to the setting aside of these duties.3. Reducing Penalty Imposed Under Section 11AC of the Central Excise Act, 1944:The penalty under section 11AC was reduced from Rs. 4,30,85,195/- to Rs. 3,00,000/- despite confirming the central excise duty of Rs. 11,94,219.20. The court upheld this reduction, emphasizing that the refusal to allow cross-examination of Thakkar undermined the evidence against the respondents. The court found that the evidence was insufficient to justify the higher penalty.4. Setting Aside Fines Imposed Under Section 34 of the Central Excise Act, 1944:The fines of Rs. 8,00,000/- and Rs. 90,000/- imposed under section 34 were set aside. The court agreed with the majority view that the lack of cross-examination of Thakkar meant his statement could not be used as evidence. Consequently, the fines based on this statement were unjustified.5. Setting Aside Interest Levied Under Section 11AB of the Central Excise Act, 1944:The interest levied under section 11AB was also set aside. The court's reasoning followed the same logic as with the penalties and fines: without reliable evidence, the interest could not be justified.6. Setting Aside Penalty Imposed Under Rule 25 of the Central Excise Rules, 2002:The penalty of Rs. 3,00,000/- imposed under Rule 25 was set aside. The court reiterated that the refusal to allow cross-examination of Thakkar rendered his statement unreliable, and without his statement, there was no basis for the penalty.7. Determining if the CESTAT Order Was Based on No Evidence or Partly Relevant/Irrelevant Evidence:The court examined whether the CESTAT's order was based on no evidence or partly relevant/irrelevant evidence. The court found that the reliance on Thakkar's statement without cross-examination constituted a serious flaw, making the order arbitrary and vitiated in law. The court concluded that the CESTAT's order was justified in setting aside the penalties, duties, and fines.8. Setting Aside Penalty Imposed on a Transport Company Under Rule 26 of the Central Excise Rules, 2002:The penalty of Rs. 35,000/- imposed on the transport company under Rule 26 was set aside. The court noted that the Member (Judicial) held there was no justification for the penalty, and the Member (Technical) linked the penalty to the outcome of the penalties on the other respondents. Since the penalties on the other respondents were set aside, the penalty on the transport company was also unjustified.Conclusion:The court dismissed the appeal, agreeing with the majority view of the CESTAT that the refusal to allow cross-examination of Thakkar was a significant flaw. Consequently, the penalties, duties, fines, and interest based on Thakkar's statement were set aside. All questions of law framed were answered in the affirmative, and the appeal was dismissed.