AI Drafter 
TaxTMI 
TaxTMI 
2018 (1) TMI 208
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....unal can aid to the proper?" 3. Learned counsel for the appellant has take us to the order of first authority where in it has been observed as under:- (x). The noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Noticees Company. The noticees demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply. 4. Further he has taken us to clause 4 of the order of First Authority which reads as under:- (iv). The noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Notices Company. The notices demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply. I find that Shri Naresh Singh Foreman was employee of the noticee and there appears no reason to allow cross examination of their own employee by them. 5. Thereafter the ground was denied which can be established from the record. 6. He has further taken us to the order of the Tribunal where Paragraph 4 and 5 it has been observed as under:- ....
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....e does not certify that the appellant was receiving coil below 10mm during the relevant period. 7. Counsel for the appellant has taken us to the various Judgments of Different High Courts wherein following principles have been laid down:- "2. In Commr. of C. Ex., Cus. and Ser. Tax, Daman vs. Nissan Thermoware P. Ltd., 2011 (266) E.L.T. 45 (GUJHC), it has been held as under :- 1. In this appeal Under Section 35G of the Central Excise Act, 1944 (the Act), the Commissioner, Central Excise, Customs and Service Tax, Daman has challenged order dated 25th March, 2009 2009 (246) E.L.T. 191 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following two questions: 1. Whether the learned Tribunal is right in law in holding that the clandestine manufacture and removal of final product by the Assessee company was not proved in view of absence of independent evidence and was right in allowing appeal extending the benefit of doubt to the Appellant when the raw material noticed was short of the statutory record which was noticed in presence of independent panch witness? 2. Whether the learned Tribunal is right in all....
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.... Madras v. Systems & Components Pvt. Ltd. : 2004 (165) E.L.T. 136 as well as in the case of K.I. Pavunny v. Asstt. Collr. (HQ.), C. Ex. Collectorate, Cochin : 1997 (90) E.L.T. 241 . Attention was also invited to the order made by the Commissioner (Appeals) to point out that the raw material of which there was shortage was a raw material which was required in large quantities whereas the other inputs were required in small quantity hence, it was not possible for the Assessee to manipulate the shortage of HD as the same was required in bulk. It was submitted that in light of the facts and circumstances of the present case, the Tribunal was not justified in giving the Assessee the benefit of doubt as regards clandestine removal. It was, accordingly, submitted that the appeal requires consideration and the questions, as proposed or as may be deemed fit, be formulated by the Court. 7. Thus, on the basis of findings of fact recorded by the Tribunal upon appreciation of the evidence on record, it is apparent that except for the shortage in raw material viz., HD which was disputed by the Assessee and the statement of the Director, there was no other evidence on record to indicate ....
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....ainst the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab - : AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of....
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....aterial which would not be in possession of the Appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the Appellant wanted to cross-examine those dealers and what extraction the Appellant wanted from them. 7. As mentioned above, the Appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross- examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17-3-2005 [2005 (....
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....tnesses, whose statements were sought to be relied upon in the show-cause notice. The said request was within the reasonable time and cannot be said to be after unreasonable delay. November 20, 2009 was the date fixed. On November 19, 2009 again the request was made for giving the opportunity of cross-examination. On these facts, we are of the view that it cannot be said that there was any lapse on the part of the respondent. 6. It is a settled principle of law that if the authority wants to rely upon the statement of any witness, the opportunity of cross-examination ought to have been given to enable the party to prove its case. Non- providing of the opportunity of cross-examination amounts to violation of the natural justice and in the absence of denial of natural justice, such documents cannot be relied upon. In the case of Basudev Garg v. Commissioner of Customs : [2013] 21 GSTR 12 (Delhi) : [2013] 294 ELT 353 (Delhi), the Division Bench of the Delhi High Court has held that the statement against the assessee cannot be used without giving them an opportunity of cross-examination. Cross- examination is valuable right of the accused/noticee in quasi-judicial proceeding, ....
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....ight of the finished product. As per the opinion of the Technical Expert, the Anti Static Oil gets removed during the process of dyeing and twisting. Nothing has been brought on record by Commissioner to disprove the said technical opinion. In the circumstances, it is apparent that when the Anti Static Oil gets removed during the aforesaid process, there would not be any increase in the weight of the finished material. Insofar as the admission on the part of Shri Modi, the authorised signatory is concerned, a perusal of the order of the adjudicating authority clearly indicates that it was the case of the respondents that Shri Modi used to always create problems for their unit and that they had a strong suspicion that he even used to steal from their unit. That, in this connection there was a bitter argument so he had turned revengeful and after landing them in all these troubles, he had left their service. Thus it is apparent that the Tribunal has taken into consideration all the relevant facts and evidences, including the evidence which has been ignored by the Commissioner, namely the report of the Technical Engineer. In the light of the aforesaid facts, considering the fact that ....
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....ing authority subsequent to cross-examination of these witnesses if allowed. Both the reasons cited by the adjudicating authority are completely baseless. Merely because, the concerned witnesses have not retracted their statements would not be a ground to deny cross-examination. In fact, this reason does not even take care of the evidence of the expert witnesses. Further what material can the petitioner bring on record through cross-examination if so allowed, is simply not germane to the question of granting or not granting cross-examination. The adjudicating authority entered into an arena of presumption while refusing such request on such ground. 10. Commissioner of central excise vs. tejal dyestuff industries, 2009 (234) E.L.T. 242, it has been held as under :- 6. Thus, on an overall appreciation of the aforesaid evidence applying the test of preponderance of probability visa-vis the confessional statements it has been found by CESTAT that the conclusion of the adjudicating authority that Cenvat Credit claimed is inadmissible, is an incorrect conclusion not supported by the evidence on record. 7. The learned counsel for the appellant laid great emphasi....
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....hat th Tribunal committed no error. Learned counsel Mr. Darshan Parikh was unable to counter the observations of the Tribunal taht such cross- examination was asked for during the course of adjudication proceedings itself. If that be the position, when the Revenue is placing heavy reliance on certain statements of the witnesses recorded during the course of investigation, without there being anything peculiar, the noticees were well within their right to seek cross examination. 9. Merely because the statements, according to the adjudicating officer, were recorded without threat, duress or coercion or that the witnesses at no stage retracted their statements, cannot be a ground for rejecting the request for cross-examination. 13. Commissioner of Central Ex. & Cus., Surat V/s. Suresh Synthetics 2016(332) E.L.T. 385 (S.C.) it has been held as under:- 7. It is noticeable that the High Court has accepted the technical report. It is submitted by Mr. Patwalia that the revenue had no occasion to contest the technical report. In our considered opinion, the revenue should have been afforded an opportunity to counter the technical report filed by the assessee by fil....
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....gly or dismissed. 15. Tejwal Dyestuff Industries V/s. Commissioner of C. Ex., Ahmedabad 2007(216) E.L.T. 310 (Tri, - Ahmd.) it has been held as under:- 4. The following defence submissions inter alia, were taken before the Commissioner : (a) Stock taking had not been done properly (b) The final product was not tested and therefore it was not open to the Department to rely on the secondary evidence (c) They produced along with their reply dated 23-3- 2005 technical opinion dated 13-3-2004 issued by Dr N.D. Jadav, Vadodara which support the case that LAB can be used in that manufacture. (d) The assessee had got their finished goods tested by extracting a small portion of 200 gms from the bag of seized goods and the test report so obtained clearly shows presence of LAB in the material (e) The departmental officer coerced Shri Nareshbhai F. Shah into making a statement that payment was received back in cash. (f) All the persons had retracted the statements within two days of recording of statement by filing affidavit before Notary Public. However, the said retraction affidavits were enclosed only along with their r....
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....tatement which was recorded of the Foreman whether the assessee is entitled for cross-examination or not while disallowing the CENVAT credit, proprietor of the firm which was considered on the basis of evidence available on record. Taking into consideration the judgment of various High Courts and Supreme Court as reproduced above, we are of the considered opinion that the cross-examination is a right of assessee. In this case there is ambiguity in the statement of employee. 13. Since in the show cause notice there is difference in statements of Foreman and Proprietor which reads as under: "3(ii) Shri Naresh Singh, Foreman of M/s SPM in his statement dated 07.12.2006 (RUD-2) recorded on spot under Section 14 of Central Excise Act 1944, interalia stated that:- (a) He was the foreman of M/s SPM for the last 10 years. He looked after the entire production activity of M/s SPM. M/s SPM was engaged in the manufacture of machineries. The raw materials i.e. rounds (EN9) and plates (10mm to 150mm) were used for manufacture of machineries. M/s SPM had not used MS Plate of thickness less than 10mm. (b) As per the requirement of the customer they used to manufactur....