TaxTMI 
TaxTMI 
2013 (9) TMI 580
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....sue involved is also the same namely availment of Cenvat credit on the inputs which were not received by the appellants in their factory. In the first case, the findings of the Commissioner is that the appellants did not receive the imported inputs and in the second case it was the indigenous inputs. Since the issue involved is same and the main party is also same, both the cases are taken together and a common order is being passed on the stay petitions filed by the appellants. 3. In the first case, the Commissioner has found that the appellants had availed Cenvat credit to the tune of Rs. 77,51,061/- wrongly without receiving the imported inputs cleared from ICD Tughlakabad, with interest as applicable. He also imposed equal amount of penalty under Section 11AC and equal amount of penalty under Rule 25 of Central Excise Rules. He also imposed a penalty of Rs. 25 Lakhs on the Director and penalty of Rs. 10 Lakhs on Shri Navratan Lal Sharma, proprietor of M/s. Singhal Road Carrier. In the second case, demand of Rs. 1,79,45,801/- being wrongly availed Cenvat credit with interest as applicable has been made and the Commissioner has imposed penalty of equal amount under Section 11A....
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....te on behalf of Shri Sanjay B. Hundia submitted that the appellant is doing the business of shroff and he has taken the permission of RBI for this purpose. During the course of his business he has discounted 12 cheques of M/s. Gujarat Cypromet Limited and issued the cheques in lieu of cheques produced. It is his submission that this is a regular business activity. He also submits that such service is required in view of the fact that appellant is able to issue cheques in places wherever bank is located which saves expenditure for the persons who come to them by way of collection/discount charges for outstation cheques levied by the banks. Further, he also submitted that as per the decision of Larger Bench of the Tribunal [2007 (217) E.L.T. 506 (Tri.-LB)], no penalty is imposable under Rule 26 of Central Excise Rules if the person is not dealt with the excisable goods. 6. Learned SDR on behalf of the Revenue submits that the request for cross-examination has been rightly rejected by the Commissioner in view of the fact that statements have not been retracted and further inculpatory statements were recorded from the Director and employees of the company. Further, he also submits t....
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.... held on 9-10-2008 reproduced by the Commissioner in his order, reads as follows; "Shri Paresh Seth, advocate appeared for personal hearing today. It was pointed out by him that no reply to show cause notice has been submitted by the noticee till date. He was directed to submit their written submissions by 13-10-2008 positively. He was also asked to submit vakalatnama." This has been signed by the ld. Advocate also. This clearly shows that claim made by the learned advocate that in spite of written request made by them, Commissioner did not allow cross-examination, is not correct. In the second case, appellants have requested for cross-examination of 19 persons but a detailed reply was given to the appellants explaining that cross-examination cannot be allowed and Commissioner has also given detailed reasoning. In any case, we find that the following evidences available which in our opinion show that prima facie the claim of the appellants that principles of natural justice have not been observed does not appear valid :- In the First Case (i) The CHA has admitted that goods were transported only to the places in or around Delhi. (ii) Transporters have admitted that they ha....
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....(xi) In this case also, out of 21 vehicles, 10 vehicles were found to be Motor Cycles, Scooters, Motor cars and two vehicle's numbers were found to be non-existent and in respect of remaining vehicles, no report has been received. The owner of the vehicles who could be located have stated that their vehicles are incapable of transporting the goods. Shri Sher Singh, Manager of M/s. Bombay Patiala Transport has stated that the bilties were bogus. Shri Kulvinder Singh Proprietor of M/s. New Satkar Tempo Transport Union had stated that he had given bilties to an employee of M/s. Annapurna Impex for Rs. 50/- each. (xii) Gujarat Government has reported that none of the 21 vehicles had entered in the Gujarat State. 8. The observations made above shows that the department's case is not on the basis of mere statements but on the detailed investigation and recording of evidences and documents. Therefore, the contention of the appellants that principles of natural justice are not observed is unacceptable. The evidences discussed above when considered along with the statements of all the parties concerned which have been recorded show that appellants have not been able to make out a prim....
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.... therefore, directed pre-deposit of only 50% of the duty demand. In the circumstances, the contention advanced by the learned Counsel for the petitioner that the Tribunal has not addressed itself to the issue of the petitioner having been declared as a sick industrial unit by BIFR does not merit acceptance. 7. The main plant of the submission advanced by the learned Counsel for the petitioner is that the petitioner having been declared a sick industrial unit by the BIFR, the Tribunal ought to have granted full waiver of the pre-deposit. By an order of even date passed in Special Civil Application No. 2968 of 2008, this Court has considered a similar issue and has after considering the claim of the petitioner therein in the light of the decisions on which reliance had been placed by the learned Counsel for the parties, upheld the impugned order of the Tribunal whereby the petitioner therein was directed to deposit part of the duty amount. Though a distinction was sought to be drawn in the present case, on the ground that specific averments were made in the application for waiver and that the balance sheet for the relevant period had also been annexed, in effect and substance the ....
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....s persons, which stand relied upon by adjudicating authority. It is well settled that, when the statement of a third person or co-accused is being relied upon, it is essential for a fair trial to test the veracity of the same by cross-examination. Mere reliance by the adjudicating authority on various decisions, where such cross-examination was held as not essential, by itself is not sufficient inasmuch as the request for cross-examination has to be viewed and examined in the context of the facts and circumstances and evidences available in that particular case. As in the present case, the Revenue's reliance are based primarily on statements of transporters, their request should have been properly examined by the adjudicating authority. The observations made by learned brother that the appellants in their letter dated 9-10-2008 made a request for cross-examination of transporters whereas, it is not one transporter who is involved in the transportation of the goods. Merely because the appellants have not given the detailed list of the transporters giving names of each and every deponent, should not be made the basis for denial of cross-examination to them. 14. I also note that th....
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....entral Excise Act, 1944, as held by learned Member (Technical) or all the stay petitions have to be allowed unconditionally and the matters to be remanded for fresh consideration after following the principles the natural justice. 18. Vide Order No. M/991-1007/WZB/AHD/2009 dated 4-8-2009, following difference of opinion was recorded :- Difference of opinion "Whether M/s. Gujarat Cypromet Limited should be directed to deposit an amount of Rs. 40 Lakhs and Rs. 90 Lakhs in terms of Section 35F of Central Excise Act, 1944, as held by learned Member (Technical) or all the stay petitions have to be allowed unconditionally and the matters to be remanded for fresh consideration after following the principles of natural Justice" 19. The registry was directed to place the above difference of opinion before the Hon'ble President for nomination of Third Member to decide the difference. Hon'ble President in his order dated 10-8-2010 has directed the Bench to reformulate the difference of opinion by observing that two Members cannot refer the entire appeal because of difference of opinion instead of making a statement referring the point or points of difference between them. Accordin....
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....to direct the appellant to deposit an amount of Rs. 40 lakhs as a condition of hearing of their appeal, as observed by Member (Technical)? (ii) Whether the appellant's request for cross-examination was required to be allowed by the Commissioner or not? (iii) Whether the statements of various persons can be said to constitute sufficient evidence so as to come to a prima facie findings against the appellant or veracity of the same were required to be tested by the tool of cross-examination? (iv) Whether the precedent decision in the case of M/s. Metal Gems & Others, remanding the matter for cross-examination of the transporters etc. is required to be followed, as observed by Member (Judicial)? (v) Whether the appellant M/s. Gujarat Cypromet Ltd. & others is required to deposit an amount of Rs. 40 lakhs and Rs. 90 lakhs, as a condition of hearing their appeal, as directed by Member (Technical) or the Stay Petition has to be allowed and matter is required to be remanded for fresh consideration with directions to follow the principles of natural justice, as observed by Member (Judicial). 22. Ld. Counsel appearing on behalf of the appellant would take me through the conclu....
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....re was a specific request for cross-examination of the individuals and in those cases, the evidences that were relied upon were mainly on the statements. It is his submission that in the case in hand, there is clear-cut evidence inasmuch as in one case, the appellant did not bother to reply to the Show Cause Notice and the appellant's advocate on the date of personal hearing, was directed to file the reply and vakalatnama and on such direction, the appellant sought cross-examination of the transporters. It is his submission that there is a lack of bona fide in the appellant's request for cross-examination as he did not file any reply to the Show Cause Notice and was evading the summons issued by the Department to bring out the correct facts. It is also his submission that in this case, the appellant's directors were shown the various statements and the said Directors have agreed that such statements are true. It is his submission that this factual difference would make a strong case against them inasmuch as the director has agreed before the authorities as to non-receipt of the inputs. It is his submission that the appellant should not be allowed to take the benefit of the delay at....
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....nt of the CHA who has admitted that the goods were transported only to the places in or around Delhi, transporters who have admitted that they have not transported the goods and most of the vehicles were found unfit for transporting the goods and one of the transporter has been fictitious. The adjudicating authority has also relied upon the evidences of the statements of the owners of the premises who had rented his premises to one of the supplier and stated that during the relevant material period, the premises which were rented out was not having any manufacturing activity or no machinery or equipments were installed and the supplier of the raw material to such supplier of the materials to the appellant has never supplied any material and that the type of the vehicles were found to be two wheeler motor cycles, etc. 28. In my considered view, the issue in this case is identical to the issue in the case of Metal Gems & Others (supra). The facts which are relevant in this case and in that case are more or less similar or identical and the inputs involved in this case is also Copper ingots which were used for Copper pipes/flats/tubes and the issue is denial of Cenvat credit of the....