AI Drafter 
TaxTMI 
TaxTMI 
2021 (7) TMI 682
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....ligibility of CENVAT credit are taken for disposal by this common order. The duty demand have been raised in the original adjudication orders, as also upheld by the aforesaid appellate orders impugned herein, on the ground that the appellant company has availed CENVAT credit on the strength of fake invoices without actually receiving the goods in violation of the CENVAT Credit Rules, 2004. 2. The appellant company is engaged in the manufacture of M.S. Ingots on which Central Excise duty is being paid. Show Cause Notice (SCN) dated 06.06.2016 was issued by the Addl. Commissioner, Central Excise, Ranchi, for the period 2012-13 to 2013-14 for proposing denial of CENVAT credit in respect of seven invoices issued by the Central Excise registered dealers as mentioned therein on the ground that those dealers never supplied the goods as mentioned in the invoices. On the basis of letter dated 14.08.2015 issued by the DGCEI, Jamshedpur, addressed to the Ranchi Commissionerate, it was alleged in the SCN that the manufacturers as mentioned in the Excise invoices issued by the said dealers never sold goods to the said dealers and that the said dealers were issuing bogus invoices. Statement d....
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....ning of Section 193 and Section 228 of the Indian Penal Code as mentioned therein. 3. Shri Shekhar Sharad, learned Chartered Accountant, appeared for the appellant and Shri A. Roy, learned Authorized Representative appeared for the Revenue. 4. The learned Chartered Accountant for the appellant, inter-alia, submitted that the instant demand has been raised merely on the basis of the statements of the persons whose cross-examination have not been allowed to test the correctness and authenticity of the allegations and hence the same will prejudice the interest of the appellants. The observations made by the authorities that the appellant deliberately kept away the persons from causing appearance whose cross-examination was requested is a bald allegation and without any basis in the absence of any evidence. He relied on several decisions including the following decisions, in support of his contention to submit that statements made by the person cannot be entered into evidence where the cross-examination of the statements of said persons are sought to be relied against the assessee :- • CCE vs. Parmarth Iron Pvt. Ltd 2010 (260) ELT 514 (Allahabad) • G-Tec....
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....by the DGCEI, Jamshedpur, enclosing the statements made by the persons whose cross-examination have not been allowed. No other evidence is available on record but the statements which too have not been allowed to be examined. The status of the proceedings against the said persons, if at all taken by the Department, have not been informed and neither the said persons have been implicated as conoticee in the present proceedings. In the absence of prosecution of said persons, the appellants cannot be deprived in any manner. 7.2 On perusal of para 3.25 of the adjudication order dated 15.09.2017, I find that the request for cross-examination of the persons whose statements have been relied upon has been turned down on the ground that despite several opportunities given by the Department, those persons failed to turn up before the authorities. Identical observation has been made in para 3.12 of the other adjudication order dated 15.09.2017. In this regard, I find that the reasons assigned by the authorities below to reject cross-examination is clearly unsustainable in legal parlance for the obvious reason that no adverse inference can be drawn against assessee whose statements are to ....
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....dicating authority to proceed with the adjudication without relying on these statements against the person so charged. Failure of a witness to appear for cross-examinationwill not be a ground to penalize the appellants in law when the appellant is entitled to an opportunity of cross-examination of third party on whose statements reliance is placed. In case of L. Chandrasekhar v. Collector of Customs, supra, decided by the Tribunal applies on all fours to the present case. For ready reference, the relevant portion may be reproduced herein with advantage : "5. On going through the records, I find that the factual submission set out above and made by the learned Counsel are correct. The Tribunal initially remanded the case for giving the appellant an opportunity of cross-examination of third parties on whose statements reliance had been placed against the appellant. In the impugned order, after remand, the learned Adjudicating Authority in this context has observed as under : "S/Sri Sundarraj, Velusamy, Manuel Coreira, Sethu and Kalyani who were called upon forcross-examination did not turn up. The Advocates insisted on their cross-examination but it appeared that th....
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.... laid down by the Hon'ble High Court in the case of Parmarth Iron Pvt Ltd. has held that when the Revenue does not allow cross-examination of any prosecution witness then Revenue cannot rely on the statement given by such prosecution witness for confirmation of demand. The relevant portion of the decision of the Tribunal is extracted below:- "6. Having considered the submissions from both the sides and on perusal of record, we note that the Original Adjudicating Authority has basically relied on few statements recorded and two ledgers maintained by the appellant M/s. Nidhi Auto and one diary recovered from the residence of partner of M/s. Ruby Steels and transport details for five months provided by Shri Arun Jain and he has accepted all the evidences relied upon for issue of show cause notice without examining the contentions of the appellants which were submitted before him before passing the impugned Order-in-Original. We note that it was held by Hon'ble Allahabad High Court in the case of Commissioner of Central Excise v. Parmarth Iron Pvt. Ltd. (supra) that if Revenue does not allow cross-examination of any prosecution witness then Revenue cannot rely on the statement....