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TaxTMI 
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2026 (4) TMI 1824
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.... investigation and allegations against the appellants are also identical that they have been taking CENVAT credit against the forged invoices without getting the material. Since the relief in all the appeals sought by all the appellants is identical therefore it would be appropriate to take up all the appeals together for the purpose of discussion and disposal. The details of all the appeals are given herein below: Sr. No. Appeal No. Party name Period Amount of Central Excise Duty Involved Amount of Penalty Imposed Impugned order no. and date 1. E/60186/20 14 M/s Vimal Alloys Pvt. Ltd Dec'2016 25,621 25,621 LUDEXCUS001-APP31-32-2024 dated 01.02.2024 2. E/60187/20 24 M/S Hansco Iron & Steel Pvt Ltd Dec'2015 1,88,720 1,88,720 LUDEXCUS001-APP29-30-2024 dated 01.02.2024 3 E/60189/20 24 Ashok Aggarwal Dec'2015 - 3,55,381 LUDEXCUS001-APP45-46-2024 dated 08.02.2024 4 E/60190/20 24 M/S Bhawani Casting Pvt Ltd, Dec'2015 3,55,381 3,55,381 LUDEXCUS001-APP45-46-2024 dated 08.02.2024 5 E/60201/20 24 M/S Unique Ispat Pvt Ltd Dec'2015 - 3,95,783/- LUDEXCUS001-APP37-38-2024....
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....he appellant submits that the impugned orders are 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 during the course of investigation, statements of various persons from whom the appellants have made purchases have been recorded but cross-examination of those witnesses, whose statements have been relied upon to build the cases against the appellants have not been granted despite of the request made by the appellants in their reply to the show cause notice as well as during the hearing before authorities. He further submits that considering the contradictory and disputed circumstances of the case, it is a fit case for allowing cross-examination. He further submits that cross-examination was rejected by both the authorities on the basis of the judgment of Hon'ble Supreme Court in the case of Kanungo & Co. Vs Collector of Customs, Calcutta and others - 1983 (13) ELT 1483 (SC). He further submits that the said decision is not applicable in the facts and circumstances of the case because the judgment in the said case was delivered prior to the introduction of Section 9D of the....
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....categorically held in Para 19 that it is mandatory to allow the cross-examination of material witnesses whose statement is relied upon against the assessee. He further submits that this Tribunal by following the ratio of the decision of the Hon'ble jurisdictional High Court in the case Jindal Drugs Pvt. Ltd. (supra) has held in the case of M/s Lauls Ltd. Vs CCE (Final Order No.,60192-60194/2023 dated 19.07.2023) as under: 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 Adjudicating Authority has not accepted the request. Adjudicating Authority finds that: M/s Lauls Ltd, Faridabad (Noticee No. 1) in their reply dated 30.9.2009 had asked for cross-examination of the witnesses whose statements had been relied upon in the show cause notice, but thereafter they did not stress for cross-examination of said witnesses. Even during the personal hearing held on 23.11.2009 before the then Commissioner of Central Excise, Delhi-IV, Faridabad, no such request for cross-examination of witnesses was stressed either ....
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....d 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 such discretion, i.e., the order which would be passed, by the adjudicating authority under Section 9D, if he chooses to invoke clause (a) of sub-section (1) thereof, would be pregnable to challenge. While the judgment of the Delhi High Court in J&K Cigarettes Ltd. (supra) holds that the said challenge 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. 2183/1....
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....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 Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit 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....
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....uess 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 17-32005 [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 reject....
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....f fake invoices can be proved on the basis of documentary evidences on record, which are self-speaking and cross-examination, if allowed, will not serve any useful purpose. 9. I have considered the submissions of both the parties and perused the material on record as well as the judgments relied upon by both the parties cited supra. Further, I find that the identical issue has been decided by the Hon'ble Punjab & Haryana High Court in the case of Jindal Drugs Pvt. Ltd. (supra) as well as in other cases cited supra wherein it has been consistently held that the assessee has right of cross-examination of material witnesses whose statements were relied upon by the Revenue to make out a case against the assessee. The ratio of the said decisions relied upon by the appellant are squarely applicable in the facts and circumstances of the present case and in this case, a specific request was made for grant of cross-examination of material witnesses before both the authorities but the same was denied without giving any sufficient grounds. 10. Further, I find that the decision relied upon by the learned AR for the Revenue is not applicable in the facts and circumstances of the case beca....