TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1113
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....tter dated 13.10.2008 to inspect/take the copies of the relied upon documents, the appellants informed, vide Letter dated 14th November, 2008, that the documents being voluminous, copies may be furnished to them and opportunity to inspect the documents would not serve any purpose. Meanwhile, a personal hearing was fixed for November 28, 2008; the appellants informed that as the relied upon documents were not furnished to them, they are not in a position to submit a written reply or to attend the personal hearing. DGCEI again informed the appellants, vide Letter dated November 18, 2008, that records can be inspected; the appellants visited the office of DGCEI and however could not take the copies of the documents. Personal hearing was again fixed on February 4, 2009 or February 11, 2009; the appellants informed, vide Letter dated February 12, 2009, that they require at least one-month time to file reply and to attend personal hearing. The Adjudicating Authority passed an order dated 27.02.2009 which was challenged by the appellants. The CESTAT vide Final Order No.650- 652/2009 dated 04.09.2009 set aside the OIO and remanded the case back to the Original Authority for de novo adjudic....
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....peal No. E/2405/2011) submits that penalty has been imposed on the appellant on the ground that he has arranged Cenvatable bills from firms operated by Shri Rakesh Bansal for M/s Lauls Limited; he submits that Rule 26 as it existed before 11.05.2007 did not provide for imposing penalty on a person who has issued invoices without dealing with the goods; during the relevant time, existing Rule 26, "Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty". 5. He further submits that the entire case of the Department is that only invoices were exchanged and there was no supply of goods; under the circumstances, the appellant cannot be alleged to have dealt with goods which are rendered for confiscation and consequentially rendering the appellant liable for penalty. He submits that it is common knowledge that the provision of law can be invoked as existing in the relevant time and not as amended at a later date. Rule....
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....ngth on the point that they were not permitted to cross-examine the persons whose statements are relied upon in the show cause notice and the impugned order. It is the arguments of the appellants that the instant case is built up mainly on the basis of statements of different persons as cited above and therefore, it was incumbent upon the Adjudicating Authority to conduct or to allow cross-examination of the witnesses in terms of Section 9D of Central Excise Act, 1944. Learned Counsel submits that this has vitiated the proceedings and as such is fatal to the impugned order as principles of natural justice have not been adhered to. Learned Counsel relies on the judgments of Hon'ble jurisdictional High Court in the cases of Jindal Drugs Pvt. Limited and G. Tech Industries (both supra). We also find from the argument of learned Authorized Representative that the case has been made on the basis of number of statements, some of which are cited above. 8. We find that the appellants have made a request to the Adjudicating Authority to give an opportunity to cross-examine particularly, Shri Ram Bilas Bansal, Shri Abhay Gupta and Shri D.K. Gupta, the witnesses. However, the Adjudicat....
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....any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." 10. We find that Hon'ble Punjab & Haryana High Court observed in the case of Jindal Drugs Pvt. Limited (supra) held that: "15. Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, it is self-evident inference that the decision flowing from the exercise of ....
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.... of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the ....
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....lea 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 would not be in possession of the appellant themselves to explain as to why their exfactory 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 ....
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....ut any movement of goods, was inserted by notification dated 1-3-2007 which was not applicable to alleged acts committed prior to the said date. Further, in view of the findings recorded by Commissioner (Appeals) to the effect that Rule 25(1)(b) of the Rules was not attracted to the facts of the present case, the aforesaid judgment does not advance the case of the revenue. However, the Commissioner (Appeals) and the Tribunal on facts deleted the penalty. The findings of the Commissioner (Appeals) while deleting the penalty read thus : "14. I have gone through the relevant provisions of the law. The fact is that exisable goods were never manufactured. Rule 25(1)(b) of the Cenvat Credit Rules, 2002 provides penalty for non-accountal of excisable goods, liable to confiscation, produced or manufactured or stored by any producer, manufacturer, registered person of a warehouse or registered dealer. Under Rule 13(2) of the Cenvat Credit Rules, 2002 penalty is imposable for fraudulent taking/utilization of Cenvat credit with intention to evade payment of duty. In the present case no excisable goods, liable for confiscation, have been manufactured or produced. Provisions of Rule 13(2) an....