TaxTMI 
TaxTMI 
2015 (10) TMI 1104
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....ule-26 of the Central Excise Rules 2002 and upheld by the first appellate authority. 2. Shri Alok Barthwal (Advocate) appearing on behalf of the appellants argued that main appellant is manufacturing Alluminium, Brass and Copper ingots from raw materials Scrap of Alluminium, Brass and Copper. That main appellant is importing scrap and availing Cenvat Credit of these inputs used in the manufacture of final products in its factory situated at silvassa. That a case was booked against the main appellant and others on the grounds that inputs imported in certain containers were diverted elsewhere instead of taking these inputs to their factory and only Cenvat Credit was taken on the basis of documents/ Bills of entry without receipt of inputs. That M/s Pankaj Shipping and Transport Co.Ltd.(PSTC) were engaged by the main appellant as their CHA and transporter with respect to consignments of scrap imported at JNPT and their transport to silvassa. Revenue has based their case on the basis of Daily Loading Report prepared by PSTC's Loading Supervisor and the monthly loading report prepared vehicle wise by the driver of the vehicle. The statements of employees of PSTC and Manager-cum-A....
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..... 382 (Tri-Ahmd.) (v) R.A. Castings Pvt. Ltd Vs. Commissioner of Central Excise, Meerut-I 2009 (237) E.L.T. 674 (Tri-Del.) (vi) Rhino Rubbers Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore 996 (85) E.L.T. 260 (Tri) (vii) Commissioner of Central Excise, Coimbatore Vs. Rajguru Spinning Mills- 2009 (243) E.L.T. 280 (Tri.-Chennai) (viii) Sakeen Alloys Pvt. Ltd. Vs. Commissioner of Central Excise, Ahmedabad- 2013 (296) E.L.T. 392 (Tri.-Ahmd) (ix) Emmtex Synthetics Ltd. Vs. Commissioner of Central Excise, New Delhi- 2002(147)E.L.T. 649 (Tri-Del) (x) TGL Poshak Corporation Vs. Commissioner of Central Excise, Hyderabad 2002 (140) E.L.T. 187 (Tri.) (xi) Basudev Garg Vs. Commissioner of Customs-2013 (294) E.L.T. (353) Del (xii) Johnson Matthey Chem. India Pvt. Ltd. Vs. Commissioner of Central Excise, Belapur-2009 (240) E.L.T. 673 (xiii) Coromandal Fertilizer Ltd. Vs. Commissioner of Central Excise, Visakhapatnam-IV-2009 (239) E.L.T. 99(Tri.) (xiv) Commissioner of Central Excise, Chandigarh Vs. Ashoka Steel Corporation-2014 (306) E.L.T. 666 (Tri.-Del.) 3. Shri L. Patra (Authorised Representative) appearing on behalf of the Revenue argued that Propriet....
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....bsequent statement dated 19/12/2008, after three months Shri Rajeshwar Prasad R Dubey gives a different version that the hired transporter never transported any imported goods after they were unloaded at Bhiwandi or New Bombay after their reciet from JNPT. On the other hand questions were put by the investigation to Shri Pravin Kumar A Ranka, the partner of the main appellant as of how the goods reached from Bhivandi to appellants factory. Shri Pravin Kumar could not produce any documentary evidence except the freight payment document of PSTC . It was also stated by Shri Ahok Kumar that the matter was very old and numerous documents have been taken over during searches but it was confirmed that Cenvat Credit was taken by the main appellant after goods were received at their factory. In these circumstances when the same person Shri Rajeshwar Prasad R Dubey was giving contradictory statements regarding transportation of imported goods from Bhivandi to appellant's factory, it was necessary to grant Cross Examination of this person who was a third party witnesses. This was more so required when the importer and user of inputs has never confessed to have not received the inputs and ....
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...., as they apply in relation to a proceeding before a Court." 14. The Division Bench also observed that though it cannot be denied that the right of cross-examination in any quasi judicial proceeding is a valuable right given to the accused/Noticee, as these proceedings may have adverse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D, of the Central Excise Act, 1994. The circumstances referred to in Section 9D, as also in Section 138 B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the persons whose statements are being relied upon even in quasi judicial proceedings. The Division Bench a....
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....ara-15, 17 and 19:- "(15) Thus, the demand of Rs. 3,26,188/- was based upon the fact that the vehicles which were shown to have transported the goods were not capable of carrying such goods. However, the Tribunal upon appreciation of the evidence on record has found as a matter of fact that the goods were duly found to have been recorded in the assessee's factory and were consumed in production. Moreover, payment was made through banking channels and no investigation had been made at the consignor end in this regard. Under the circumstances, no error can be found in the findings recorded by the Tribunal so as to warrant interference. (17) Thus, from the evidence on record, it appears that all the goods supplied by M/s. Motabhai Iron & Steel had nowhere admitted that the assessee was issued only invoices and that there was no delivery of goods to the assessee. Besides, all the payments that were made to M/s. Motabhai Iron & Steel were made through bank drafts. The Tribunal has also noted that, in all, demand was made in respect of 44 consignments. However, it was only in respect of two transporters, who had transported merely three consignments that the alleged....
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....Aurangabad [2014 (300) E.L.T. 119 (Tri-Mumbai)]. It is observed from the facts of this case that suppliers of scrap raw materials in this case admitted receiving consideration in case without proper document. Further charge of clandestine production and removal was established by duty payment of Rs. 60,00,000/- towards such duty evaded. It is in these Factual Matrix of the case where CESTAT held that cross-examination of the witnesses was not necessary. In the case of Shalini Steels Pvt. Ltd., Hyderabad Vs. CC Hyderabad [2010 (258) E.L.T. 545 (Tri-Bang)] also the supervisor of the appellant in that case gave the confessional statement which was also accepted by the Managing Director of the appellant. It was held by CESTAT that an employ of the appellant cannot be considered as a third party witness and cross examination was not necessary. Similarly in the case of Gopal Industry Ltd. Vs. CCE Indore [2007 (214) E.L.T. 19 (Tri-LB)] Larger Bench held as follows in para 18.1:- "18.1 The "Daily report tin factory" note-book contained details of production and issue of tin containers by the appellant, which did not reflect in the statutory record. The details of production and cl....
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....f Awadesh Kumar Saxena, Electronics Engineer at various places. The daily report showed particulars of the opening stock, production and the closing stock of the said excisable goods. Admittedly, the production of the tin containers, which was recorded in these daily record books and which were removed, did not appear in the statutory record i.e. RG. 1 register of the appellant. This not a case where mere private record without anything more is relied upon. The private record was recovered from the factory of the appellant, and it is established beyond doubt and not even disputed that it was so recovered and that it belonged to the appellant. The nature of particulars contained in this private record clearly go to show their intrinsic authenticity about the clandestine production and removal of the excisable goods by the appellants who had obtained the excise registration for the manufacture of such goods in the firm name. There cannot be more authentic evidence than recovery of the said private record from the appellant's factory which admittedly was prepared and bears the signatures of the supervisors of the appellant, and which is proved to have been maintained in the factor....