TaxTMI 
TaxTMI 
2023 (2) TMI 776
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....mited, for manufacture their final goods i.e. SS pipes, was purchasing their raw material from the petitioner company and the same are supplied by the petitioner under the cover of central excise invoices on payment of central excise duty. In the process of manufacturing, SS pipes, SS scrap is generated. The same is supplied by M/s Suraj Limited to the petitioner under the cover of central excises invoices on payment of duty. 2.2 It is the say of the petitioner that officers of the preventive wing of Central Excise Department carried out the search in the premises of M/s Suraj Limited and withdrew their record under the panchanama. The suspicion on the part of the preventive team is that the petitioner only issued the central excise invoices without supply of goods. Therefore, M/s Suraj Limited has availed Cenvat Credit of excise duty without receipt of goods mentioned in the invoice and the allegations against the petitioner had been that it abetted with Suraj limited in availing Cenvat Credit based on the invoices issued by the petitioner without receipt of goods. 2.3 It is the say of the petitioner that no investigation at its premise had taken place. However, on the basis....
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....ovisions of Section 33A of the Central Excise Act which contemplates the opportunity of hearing go be granted minimum three times, whereas the original adjudicating authority has granted the opportunity of personal hearing only once and passed the order which is ex-parte. Reliance is also placed on the circular no.1053/2/2017 dated 10.3.2017. Moreover, it is also the grievance of the petitioner that the notice for personal hearing was received on the evening of 9.10.2020 and hence hearing could not be attended and fresh notice for personal hearing was requested. 3. In the above premise, the petitioner sought the following prayers: "10(A) That Your Lordships may be pleased to call for records and proceedings before Respondent No.2, the Commissioner of CGST and Service Tax, Gandhinagar Commissionerate at Ahmedabad to verify the noting of directions on the file; (B) That Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, direction or order, quashing and setting aside the impugned ex-parte order in Original No. AHM EXCUS- 003-COM-031-20-21 dated 12.10.2020 passed by Respondent No.2 (Annexure-"A"), and be....
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....pplicant that he was not afforded a reasonable opportunity of hearing in as much as the writ applicant also wanted to cross examined the persons who have been named in the show cause notice like transporters etc. 6. Let Notice be issued to the respondents, returnable on 17.03.2022. 7. Let there be an ad-interim order in terms of paragraph 10(C). 8. Direct service for respondent No.2 and service to respondent No.1 - Union of India through E-mail is permitted." 5. The affidavit-in-reply is filed by Commissioner, CGST & C.Ex. Gandhinagar Commissionerate, at Ahmedabad denying all allegations. It is reiterated that M/s Suraj Limited has availed Cenvat credit on the strength of invoices issued by petitioner without corresponding delivery of the goods. This has emerged during the investigation as per the invoice wise details called for from the RTO office. Moreover, it is urged that the show cause notice has been issued to the petitioner on 17.12.2018 requiring them to have a written submission within 30 days of issuance of the SCN. However, for more than one year, the petitioner failed to respond and when the department asked it to reply, on 25.7.2019, addre....
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.... already fulfilled by supplying the very show cause notice after having received the petitioner's e-mail on 27.9.2019 addressed to the department. Hence, this issue raised will not be necessary for the Court to further consider for the purpose of examining whether there was a breach of principles of natural justice. 9. The two issues that require consideration are non-availment of opportunity of cross-examination of the witnesses and also non-grant of personal hearing as provided under the statute and the circular which has been issued by the respondent. 10. This Court also, at the time of issuance of notice, had referred to the Section 33 of the Central Excise Act where the petitioner has pointed out that the action is violative of Section 33A of the Central Excise Act which otherwise, contemplates an opportunity of hearing to be granted minimum three times. We need to also refer to the Circular No.1053/2/2017 dated 10.3.2017 issued by the Central Board of Excise and Customs, Ministry of Finance (Department of Revenue), New Delhi, where subject is `Master Circular on Show Cause Notice, Adjudication and Recovery Regarding'. 14.3 and 14.4 which speaks of the personal hearing s....
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....fter the lockdown from 23.3.2020. The petitioner had categorically averred that on account of the fact that the pandemic due to covid-19 did not allow the petitioner to represent its case before the authority concerned as the hearing was not virtual hearing. The second time the hearing was granted was 9.10.2020. It is urged that the letter of 5.10.2020 which rescheduled the date of hearing on 9.10.2020 was received by the petitioner on 9.10.2020 itself in the evening. There could not have been possibility of seeking any adjournment although the grievance has been made by the respondent, even without entering into the rival contention as to what point of time this communication for personal hearing was received by the petitioner. The fact is not in challenge that it had been received on 9.10.2020. In that eventuality, to insist on someone to appear on that very day even if it was a virtual hearing would have been an impossibility. We notice that in the affidavit-in-reply, the reference on the part of the petitioner is of the letter dated 5.10.2020 rescheduling the date of personal hearing to 9.10.2020 in absence of any clarity wherefrom the communication dated 5.10.2020 was sent by ....
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.... with a case where the assessee had not been allowed cross-examination of the witnesses by the adjudicating authority though the statement of those witnesses were made the basis of the impugned order. This was held "to be a serious flaw which made the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which w....