TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 352
X X X X Extracts X X X X
X X X X Extracts X X X X
....iation of evidence by overlooking material evidence vital to determination of issues involved; c) Whether, in the facts and circumstances of the case, the Hon'ble CESTAT had made patent error in confirming the demand without any corroborative or affirmative evidence." 3. Subsequently, the appellant has filed CMP No.12613 of 2017, seeking permission to raise the following additional questions of law. "1. Whether the principles of preponderance of probabilities applies to establish clandestine sale of cone yarn as hank yarn or the doctrine of proof beyond all reasonable doubt applies in adjudication proceedings under the Central Excise Act, 1944 as the same is quasi-judicial proceedings. 2. Whether in the absence of witnesses, whose statements were the basis of show cause notice, being made available for cross examination in adjudication proceedings, the burden of proving that the Respondent-assessee was liable has been discharged. 3. Whether the charges against the Appellant stands proved in the absence of the witnesses, whose statement were the basis of charge, not being available inspite of summons under Sec 40 of the Act issued by the Authorities and the Authorities not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed in the previous paragraphs will be sufficient testimony to show that the earlier versions were no correct. It is to be noted that only when a witness is called upon to confirm the correctness of the statement made earlier and when he is subjected to cross-examination to find out the truth of the earlier statement, then only the factual position emerges. If what emerges during the cross-examination has to be denied all the time then the purpose of cross-examination is rendered meaningless. Since the outcome of the cross-examination is contrary to the statement given earlier, the respondent cannot take a stand that the earlier statements were not retracted and therefore, they have to be given credence. In such a case, cross-examination of a person will be an empty formality and will not serve any purpose. As that is not the intention, the conclusion made by the respondent in this regard is misconceived." 5. Reliance was also made on the Division Bench decision of this Court in NGA Steels (P) Ltd., Vs. CESTAT, Chennai reported in 2016 (339) ELT 217 (Mad.), which answered a similar question of law, in favour of the appellant therein, and remanded the matter to the tribunal. 6. Att....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... goods by the appellant therein, opportunity ought to have been given. However, CESTAT, rejected the same. Thereafter, the appellant therein filed Civil Miscellaneous Appeal before this Court, by raising the following substantial questions of law. A. Whether the Tribunal is justified in holding clandestine removal of final products without any corroborative evidences such as unaccounted purchase of raw materials, transportation of raw materials to the factory and transportation of final products from the factory and suppression of production with electricity consumption? B. Whether the Tribunal is justified in passing the final order without discussing or without giving a finding on the specific plea raised in the grounds of appeal that cross-examination of persons who gave statements against the appellant and which were relied on by the Dept. is mandatory? C. Whether the documents maintained by third parties and statements alone constitute sufficient evidence to come to the conclusion of clandestine removal of goods without payment of duty without any correspondent documents recovered from the appellant? 10. After perusal of the order of CESTAT, impugned therein, a Hon'bl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has not eschewed the statements given by those two persons and in fact, there is reference to the statements recorded from them even in paragraph No.12 of the impugned proceedings. 14. Adverting to the rival contentions, at paragraphs 9 and 10, a learned Single Judge held as follows: 9. The other angle from which the matter can be approached is that if those two persons are not available for cross-examination, then their statements could not have been relied upon and the petitioners should have been afforded an opportunity to contest the matter, without reference to those two statements. This exercise also has not been done by the adjudicating authority while passing the impugned order. That apart, the impugned order levies Central Excise duty and the quantification for the job works has also been made, relying upon the statements given by those two persons. 10. It may be true that the impugned proceedings are not solely based upon those two statements. But nevertheless, those statements having been taken into consideration and those persons not having been available for cross-examination, this Court is of the view that the matter requires to be remanded for fresh consideration.....