Custom, Excise & Service Tax Tribunal
Aafloat Textiles (I) Ltd vs C.C.E.& S.Tax, Vapi on 8 May, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, O-20, NMH Compound Ahmedabad Central Excise Appeal No.839 of 2008-DB Arising out of the Order-in-Original No.13/MP/Vapi/2008 dated 29.2.2008 passed by the Commissioner, Central Excise, Vapi. Aafloat Textiles (I) Ltd. Appellants Vs. C.C.E.& S.Tax, Vapi .. Respondent
Appearance:
Present Shri J.C. Patel with Shri Rahul Gajera, Advocates for the Appellants Present Dr. J. Nagori, A.R. for the Respondent-Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Honble Mr. Ashok K. Arya, Member (Technical) Date of hearing/decision:8.5.2017 Order No.A/10942/2017 Per: Dr. D.M. Misra Heard both sides. This appeal is filed against the Order No. 14/MP/Vapi/2008 dated 29.2.2008 passed by the Commissioner, Central Excise, Vapi.
2. Alleging that the goods were removed from the factory premises of the appellant clandestinely without payment of duty, demand notice was issued to the appellant for recovery of the amount of duty not paid along with interest and proposal for penalty. Later, on adjudication, the demand was confirmed with interest and penalty. Hence, the present appeal.
3. Ld. Advocate Shri J.C. Patel for the appellant submits that the demand has been confirmed on the basis of evidences retrieved from the premises of the transporter and the statement of the transporter. Even though they have made a request for cross-examination of the transporter whose statement had been relied in the issuance of show cause notice, however, the ld. Commissioner proceeded with adjudication rejecting their request for cross-examination. He submits that while confirming the demand, ld. Commissioner had relied upon the statement of the transporter. He categorically submits that the statement/evidence furnished by the employees of the appellant are exculpatory in nature. He further submits that that denial of cross-examination of the transporter a vital witness, resulted into violation of principles of natural justice. In support, the ld. Advocate cites the judgment of the Honble Supreme Court in the case of Andaman Timbers Limited vs. C.C.E., Kolkata II 2015 (324) ELT 641 (SC).
4. Per contra, ld. A.R. for the Revenue submits that there are other evidences analysed and relied upon by the Commissioner in confirming the charges against the Appellant and the transporters statement may not be necessary in establishing the case against the appellants as overwhelming documentary evidences on record are available to establish that the goods were manufactured and cleared clandestinely without payment of duty.
5. We find that in confirming the demand against the appellant, the ld. Commissioner though referred to and relied upon statements of Shri Nadeem Siddiqui, Manager of M/s Suhel Roadlines, Shri Riyaz Siddiqui, proprietor of Suhel Roadlines, but rejected the request for cross-examination of these witnesses. We find that in view of the principles laid down in the judgment of the Honble Supreme Court in the case of Andaman Timbers Limited vs. C.C.E., Kolkata II 2015 (324) ELT 641 (SC) these witnesses should have been allowed to be cross-examined and thereafter analyzing the outcome of the cross-examination and other evidences, the Ld. Commissioner should have accordingly recorded the findings on the allegations.
6. In the result, the impugned order is set aside and the appeal is allowed by way of remand to the ld. Commissioner for allowing cross examination of these witnesses and decide the issues afresh on merit. All issues are open. Appeal is allowed by remand.
(Ashok K.Arya) (Dr. D.M. Misra)
Member (Technical) Member(Judicial)
scd/
E/839/2008-DB
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