TaxTMI 
TaxTMI 
2015 (5) TMI 376
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....onal Unit, Mumbai after it was revealed in the investigation that the appellant received Cenvatable invoices from the Jammu based manufacturers in favour of itself without undertaking delivery of the goods mentioned thereunder. While arriving at the said conclusion, the said authorities recorded the statements of Shri Kevalchand G. Jain (the Noticee No.8 therein) the broker of the appellant, amongst other statements and evidence collected by the said authorities. After issuance of the notice, the appellant filed his written submissions to the same. The Commissioner of Central Excise, Mumbai-II, the respondent herein, after hearing the parties to the show cause notice dated 8th May 2012 passed an order-in-original dated 30th September 2013 thereby confirming and ordering the recovery of wrongly availed CENVAT credit totally amounting to Rs. 96,31,754/- on the 20 consignments from the appellant under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A (4) of the Central Excise Act, 1994. It was further ordered that the appellant is also liable to pay the interest on the amount aforestated. The Commissioner of Central Excise in its order-in-original also i....
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....ellant at the check-naka at Mulund or other check-nakas in Mumbai is not in existence and in fact it is a bogus entity. He further contended that the learned Tribunal in appeal ought to have appreciated the said aspect and ought not have directed the appellant to make a pre-deposit of 50% of the duty demand confirmed against the appellant. He further submitted that as the principles of natural justice, thereby allowing the appellant to cross-examine the necessary witness have not been followed, the present matter requires reconsideration at the hands of the Commissioner of Central Excise before passing the order-in-original and confirming the demand. The learned Senior Counsel in support of his contention relied on the following judgments: (i) Swadeshi Polytex Ltd Vs. Collector of Central Excise, Meerut [2000 (122) E.L.T 641 (S.C.)] ; (ii) Union of India Vs. Rajendra Bajaj [2010 (253) E.L.T. 165 (Bom.)] ; (iii) Gyan Chand Sant Lal Jain Vs. Union of India [2001 (136) E.L.T. 9 (Bom.) ]; (iv) G.T.C. Industries Ltd. Vs. Union of India [1991 (56) E.L.T. 29 (Bom.)]. 5. Per contra, Mr. Mishra, the learned Counsel appearing for the Revenue, inter alia, supported the impugned....
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.... goods in their factory premises. That there is no substance in the contention of the appellant that they had discharged the Octrai duty as the investigation has clearly established that neither any of the vehicle related with the said invoices crossed the checknaka at Mulund nor any Octrai thereon was paid. It has been held that, as there is no retraction of the statements recorded under Section 14 of Central Excise Act, 1994 and therefore it was not necessary to accede to the request of the appellant for cross-examination, as it was redundant exercise according to the said authority. 7. The learned CESTAT in the impugned order has recorded a finding with respect to the plea of the appellant, to cross-examine the said Mr. Kevalchand G. Jain or a supplier, who facilitated the transactions thereby contending that if the opportunity is not granted, the denial prejudicailly affects the appellant. It has been held that when the matter was verified with the Octrai authorities to ascertain whether the Trucks bearing registration numbers mentioned in the transport documents actually crossed the Octrai check-naka, the Octrai authorities confirmed that the agent appointed by the appellan....
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....tive manner with regard to the relevance of the materials and reasons. The Apex Court has further held that, it must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed. In the case in hand, we are of the opinion that as alleged Octrai firm through which the appellant cleared the goods by paying the Octrai duty while entering into the limits of Mumbai, during investigation, is found to be not in existence itself and/or a bogus entity, and therefore we find that no prejudice of whatsoever nature has been caused to the appellant because of denial of the cross-examination by the Commissioner of Central Excise before passing an order-in-original. It appears that the Commissioner of Central Excise while passing order-in-original has based his finding on the basis of evidence and/or material in the form of documents available before it and therefore the contention of the appellant that it ought to have ....