TaxTMI 
TaxTMI 
2017 (12) TMI 731
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....onsideration; b) Whether, in the facts and circumstances of the case, the Hon'ble CESTAT had committed serious infirmity in appreciation 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." 4. Subsequently, C.M.P.No.12613 of 2017, in C.M.A.No.2035 of 2017 has been filed, seeking permission to raise the following substantial 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 stan....
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....aragraphs 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." 6. Though rival submissions have been made, Mr.S.R.Rajagopal, learned counsel, for the appellant, therein, in C.M.A.No.2035 of 2017, submitted that the said Miscellaneous Appeal required to be adjudged, only on the additional substantial questions of law Nos.2 and 3, stated supra. Adverting to the....
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....xamine the persons from whom statements were recorded, has not been dealt with, and answered by the tribunal. 11. In NGA Steels (P) Limited's case [Cited supra], the learned counsel for the department was also not in a position to point out, as to whether CESTAT, Chennai has adverted to the said plea. Similar to the case on hand, learned counsel therein made submissions justifying orders of CESTAT. 12. In Karan Traders Vs. Joint Commissioner of C. Ex., Salem reported in 2016 (339) ELT 249 (Mad.), one of the questions, which came for consideration before a learned Single Judge was that, "5..... whether the authority could have proceeded to adjudicate the matter and pass the final order, without acceding to the request made by the petitioners for cross-examination of two of the persons, from whom statements were recorded by the department, namely, V.Kumaraswamy and S.Padmanabhan. These persons are said to be job workers, who have given statements with regard to the amount charged by them for carrying on the job work. The petitioner's specific request was to cross-examine these two persons." 13. The Department tried to justify the orders by ....
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.... reference to what is claimed by the appellant and denied by the Department. At this juncture, we deem it fit to consider few decisions, on this aspect, (i) The Hon'ble Apex Court in HVPNL v. Mahavir reported in (2004) 10 SCC 86, while dealing with an order passed by the State Consumer Disputes Redressal Commission, held that the appellate forum is bound to refer to the pleadings of the case, submissions of the counsel, necessary points for consideration,discuss the evidence, and then to dispose of the matter by giving valid reasons. (ii) In Tata Engineering & Locomotive Co. Ltd., v. Collector of Central Excise, Pune reported in 2006 (203) ELT 360 (SC), the Hon'ble Supreme Court, dealing with a case, whereby, a cryptic and non-speaking order, the Tribunal upheld the order passed by the Commissioner, by applying the ratio of the decision of a Larger Bench in TISCO Ltd., v. CCE, Madras [2000 (118) ELT 104 (T-LB)], without recording any findings of fact. On the facts and circumstances of the case, the Hon'ble Apex Court, while holding that it is not sufficient in a judgment, to give conclusions alone, but it is necessary to give reasons, in support of the....