2024 (12) TMI 73

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.... be appropriate to take all the appeals together for the purpose of discussion and disposal. For the sake of convenience, the Appeal No. E/60310/2023 is taken as a lead case. The details of all the appeals are given herein below: Sl No. Appeal No. Period Amount  of Central Excise Duty involved if any demanded for the period of dispute (in Rs.) Amount  of penalty imposed (in Rs.)  Impugned Order  No. and date 1. E/60310/2023 January 2015 to May 2015 26,55,997/- 26,55,997/- CHD-EXCUS- 001-LDHAPP-53-542022-23 dated 28.02.2023 2. E/60311/2023 January 2015 to May 2015 -- 26,55,997/- CHD-EXCUS- 001-LDHAPP-53-54- 2022-23 dated 28.02.2023 3. E/60438/2023 December 2014  to September 2015 -- 10,00,000/- LUD-EXCUS- 001-APP321-3222023 dated 12.05.2023 4. E/60445/2023 December 2014  to September 2015 17,88,997/- 17,88,997/- LUD-EXCUS- 001-APP321-3222023 dated 12.05.2023 5. E/60481/2023 August 2016 to May 2017 8,35,531/- 8,35,531/- LUD-EXCUS- 001-APP542-5432023 dated 19.07.....

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....earned Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts, the law and the binding judicial precedents. He further submits that investigation in this case was conducted by DGGI/DGGSTI against M/s Aryan Enterprises, Ludhiana and M/s Labh Hi-Tech Metal, Ludhiana, who were registered as Central Excise dealers and engaged in the trading of iron and steel scrap and as per their investigation, these two dealers were engaged in fraudulently passing on Cenvat credit of excise duty to various furnace units by issuing fake dealer's bills on the strength of forged excise duty paid invoices of source manufacturing units. He further submits that M/s Aryan Enterprises is a proprietorship firm of Shri Vishal Batta and M/s Labh Hi-Tech Metal is a proprietorship firm of Shri Khushi Ram Sharma. He further submits that the entire case was built on the statements of Shri Bhupinder Singh, Accountant of M/s Aryan Enterprises and Shri Vishal Batta and Shri Khushi Ram Sharma and on the basis of their statements, the Revenue has formed their opinion that the appellant has not received the material from thei....

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....entral Excise, Delhi-IV,  Faridabad,  no  such  request  for  cross-examination of witnesses was stressed either by the Advocate or S/Shri Sudhir Gupta and Abhay Gupta, Directors of Noticee No. 1, who had appeared for personal hearing for and on behalf of M/s Lauls Ltd and Noticee No. 2-Shri Abhay Gupta. However, the Noticee No. 1 again made the request for cross-examination of witnesses during the course of personal hearing held on 25.5.2011, which was the IVth date of hearing and the Noticee No. 1 had already been specifically informed vide office letter C. No.  V(72)15/Commr/CE/2008/4027-28  dated 16.5.2011 that 25.5.2011 was the last and final date of hearing and accordingly the Counsel of Noticee No.1 as well as S/Shri Abhay Gupta and Sudhir Gupta, Directors of Noticee No.1 who had appeared for personal hearing on 25.5.2011 were informed that their request for cross-examination of witnesses at this stage cannot be allowed. I find that cross-examination of witnesses in this case and that too at this late stage, is not warranted. He relies on the Judgment of the Hon'ble Supreme Court of India in the case of Kanungo & Co. Versus Collect....

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....ge could be ventilated in appeal, the petitioners have also invited attention to an unreported short order of the Supreme Court in UOI and Another v. GTC India and Others in SLP (C) No. 2183/1994, dated 3-1-1995 wherein it was held that the order passed by the adjudicating authority under Section 9D of the Act could be challenged in writ proceedings as well. Therefore, it is clear that the adjudicating authority cannot invoke Section 9D(1)(a) of the Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 16. If none of the circumstances contemplated by clause  (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1), viz. (i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion th....

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....mit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 20. In fact, Section 138 of the Indian Evidence Act,  1872, clearly sets out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to precede re-examination. 21. It is only, therefore, -  (i) after the person whose statement has already been recorded before a Gazetted Central Excise Officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-examination, can arise. We find that the Hon'ble High Court has followed the above in the case of G.Tech Industries (supra) also. 11. We find that Ho....

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....this Court in Civil Appeal No. 2216 of 2000, order dated 17-32005 [2005 (187) E.L.T. A33 (S.C.)] was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. 12. With due difference to the Hon'ble Supreme Court and Hon'ble High Court of (Punjab & Haryana), we find that not allowing the cross-examination of key witnesses vitiates the proceedings even under the quasi-judicial proceedings. Therefore, as requested by the learned Counsel for the appellants, we are inclined to accept the contention and the request of learned Counsel for the appellants that the interest of justice would be properly served if the case goes back to the Adjudicating Authority to adjudicate the case afresh after giving the opportunity to the appellants to cross-examine the key witnesses whose statements have been relied upon by the impugned order.   5. Learned Counsel further submits that in the case of Tibrewala Industries (P) Ltd. Vs CCE, Rohtak (Final Order No.60195-60197/2023 dated 19.07.2023), this Tribunal has again followed the law laid down by the Hon'ble Punjab & Haryana High Court....