Custom, Excise & Service Tax Tribunal
M/S. Slotco Steel Products (P) Ltd vs C.C.E. Delhi-I on 4 March, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Misc Application No. E/59894 & 55854/2014
Excise Appeal No. E/1408 & 2182/2009 -Ex[DB]
[Arising out of Order-In-Original No. 07/2009 dated: 30.01.2009 passed by Commissioner of Central Excise Delhi]
For approval and signature:
Hon'ble Mr. Rakesh Kumar, Member (Technical)
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Slotco Steel Products (P) Ltd. ...Appellant
Sh. Saurabh Khattar M.D.
Vs.
C.C.E. Delhi-I Respondent
Appearance:
Mr. B L Narsimhan, Advocate for the Appellants Mr. Pramod Kumnar, DR for the Respondent CORAM:
Hon'ble Mr. Rakesh Kumar, Member (Technical) Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing.13.02.2015 Date of Decision.04.03.2015 FINAL ORDER NO. 50535-50536 /2015-Ex(Br) Per Rakesh Kumar (for the Bench):
The facts leading to filing these appeals are, in brief, as under:-
1.1 M/s Slotco Steel Products (P) Ltd. (hereinafter referred to as the appellant company) are manufacturers of slotted angles/ shelves, cable trays etc., chargeable to central excise duty. Shri Saurabh Khattar is their managing director. The period of dispute in these appeals is from 2002-2003 & 2005-2006 and during this period the appellant company was availing SSI exemption. In addition to manufacturing unit in Narayana Industrial Area, they also have a trading unit from where they trade in the same products.
1.2 Om 27.12.2005 during the course of patrolling by the Jurisdictional Central Excise Officers in Narayana Industrial Area, a truck HR-47-5887 was found parked outside the factory premises of the appellant company and the Driver Shri Jitendra informed that the said truck had just been loaded from the appellant companys factory and he also produced documents in support of the transportation. The documents produced by him pertained to one M/s Surya Enterprises R-80, Vani Vihar, Uttam Nagar, New Delhi issued in the name of M/s Bharat Electricals, C/o VIRSA, IT Park, Tower-C, IInd Floor, Chandigarh. But he fail to produce any documents regarding payment of duty on the goods loaded in the truck. The officers visited the factory premises of the appellant company, and inquiry was made with Sh. Suresh Khattar, Managing Director of the appellant company, who was asked about the duty paying documents in respect of the goods loaded in the truck parked outside in the factory, but he could neither produce any invoice showing payment of duty nor he could explain as to why no invoice or bill has been issued. The goods found in the truck and which had been loaded from the appellant companys factory along with the truck were placed under seizure. A separate Show Cause Notice has been issued for demand of duty in respect of the seized goods and their confiscation and the same is not the subject matter of these proceedings.
1.3 Subsequent to the above incident, inquiries were conducted in respect of the sales made from the trading premises from where the appellant were doing the trading activity in the same types of goods. According to the appellant company, entire goods manufactured in their factory at Narayana Industrial Area were directly sold to the customers from the factory, and that the goods sold from their trading division located at a different premises, were being purchased outside. As per the Appellants record they were purchasing slotted angles, cable trays etc., for trading purpose from 23 suppliers, namely; M/s Bhartia Industries; Nehatek Engineers; Western Eastern Industrial Enterprises; SSP MFG. & TDG. Co.; Ruchika Furnishers; Konark Engineers; Shiv Shakti Industries; M L Jindal & Sons; Wembley Furnishers; Bankey Bihari Industries; Rising Steel Industries; Jindal Sons (India); Shri Krishna Trading Company; Ganpati Enterprises; Alpine Industries; Jindal Industrial Corporation; Continental Steel Sales (India); SBJAY Auto Transmission Pvt. Ltd.; Instyle Creations; Marshall Industries; Precision Steel Craft & Equipment; Summit Engineering Corporation and Sudarshan Industries. Inquiry were conducted in respect of the suppliers, some of the suppliers were not found at their address. Some suppliers were found to be the residential premises of the individuals. Some of the suppliers were found to be manufacturing units but manufacturing totally different goods and some other suppliers were found to be trading premises, but were dealing with totally different goods. A number of existing suppliers stated that they had not supplied any goods to the appellant company and that the payments received by them from the appellant company had been returned by them in cash after deducting the sales tax and their commission. In view of this, the investigating officers were of the view that the goods sold from the trading premises of the appellant company had actually manufactured by them in their factory at Narayana Industrial Area from where the same had been cleared without payment of duty. It is on this basis that after issued of the Show Cause Notice the Commissioner of Central Excise Delhi I vide order in original dated 27.01.2009 confirmed the duty demand of Rs. 1,48,60,803/- against the appellant company in respect of clandestine clearances alleged to have been made by them during period from 2002-2003 to 2005-2006 along with interest thereon under section 11AB and beside this, while imposed penalty of same amount was imposed on the appellant company under section 11AC, penalty of Rs. 50 Lakh on Shri Subhash Khattar, Director of the appellant company under Rule 26 of the Central Excise Rule, 2002. An amount of Rs. 28 Lakh deposited by them appellant company during investigation was appropriated towards the duty demand.
1.4 The appellant company and Director, Shri Subhash Khattar filed appeals before the Tribunal along with stay applications. The Tribunal disposed of the appeals as well as the stay applications vide order no. 219-220/2010 Ex-DB dated 30.04.2010 by which both the appeals were dismissed. In course of hearing before the Tribunal, one of the plea of the appellant was that the appellants had sought of the cross examination of certain suppliers whose statements had been used against them in support of the allegation of the duty evasion, but their cross examination was not allowed, but this plea was dismissed by the Tribunal with observations that it was for the assessee to insist on for cross examination and that the authority is not forbidden from relying upon such statements, and that no obligation is cast upon the adjudicating authority to issue fresh summons to the witnesses who earlier did not turned up for cross examination unless the assessee specifically asked from the same. The Tribunal accordingly, held that there was no violation of principles of natural justice.
1.5 The appellants filed an appeal under section 35G of the Central Excise Act 1944, before Honble Delhi High Court against the above mentioned order of the Tribunal wherein the following two substantial questions of law were raised for the decision of Honble High Court.
i) Whether the CESTAT was correct in dismissing the appeal of the appellants by relying upon section 9D of the Central Excise Act, when the Adjudicating Authority had not invoked the provision in its order in original?
ii) Whether the CESTAT has failed to appreciate that failure on the part of the Central Excise Department to produce witnesses on whose statements they are relying upon, does not mean that the appellant has given up its right for cross examining the witnesses? 1.6 Honble Delhi High Court vide judgment dated 08.11.2011 reported in 2012 (281) ELT 193 Del. has held that in respect of the question no. 1, the Tribunal is to re-examine the question of application of section 9D of the Act. With regard to question no. 2, as to whether, when the Central Excise Department failed to produce the witnesses, on whose statements the Department had relied upon, and when the appellant did not insist on the fresh summons being issued to the witnesses, whether the appellant can be treated as having given up their right of cross examining the witness. Honble High Court decided this question in favour of the appellant company, holding that the appellants cannot be treated as having given up their right for cross examining the witness. Accordingly, Honble High Court, remanded the matter to the Tribunal for De novo decision.
1.6.1 On the question as to whether section 9D of the central Excise Act 1944 can be invoked for relying upon the statements of the witnesses on whose statements the Department has relied upon in support of the allegation of duty evasion against the appellants, para 16-21 of the order of the High Court are reproduced below:
16. As noticed above, Section 9D of the Act was not relied upon by the Assessing Officer. He did not examine and go into the aspect as to whether the pre-conditions or the prevailing circumstances justified the invoking of Section 9D. The contention of the appellant is that when the matter was heard by the Tribunal on 19th March, 2010, the Revenue had not relied upon or referred to Section 9D of the Act during the course of arguments. During the course of hearing before us, learned counsel for the Revenue could not controvert or deny the said statement. It may be noted that both the appellant and the Revenue had filed written submissions before the Tribunal after the hearing was held on 19th March, 2010. We have examined the said written submissions and appellant had not referred to Section 9D of the Act in their written submissions. The respondent Revenue in their Written Submissions had also not relied upon Section 9D of the Act. However, as noticed above, the Tribunal, in paragraphs 15 to 19 of the impugned order dated 30th April 2010 has gone into the question of statements of witnesses which were not cross-examined and has applied Section 9D of the Act. It is apparent that the Tribunal has invoked the said Section and held that the conditions mentioned in the said Section are satisfied. Ld. Counsel for the appellant is right in their contention that the said section could not have been invoked by the Tribunal without the appellant being given an opportunity to meet the said contention. It is the contention of the appellant before us that the pre-conditions of Section 9D are not satisfied and that the said section cannot be invoked. It is submitted that the judgment of this Court in J&K Cigarettes (Supra) requires satisfaction of the said conditions and an opportunity should have been given to the assessee to contest and oppose the applicability of Section 9D of the Act. The observations of the Delhi High Co8urt in J&K Cigarettes (supra) quoted above supports the aforesaid contention of the appellant that an opportunity should be given to the assessee to offer explanation and contest, when the Revenue relies upon Section 9D of the Act.
17. We refrain from going into the contentions of the appellant on merits that on the facts on the present case, the conditions mentioned in Section 9D including condition No. (e) are not satisfied. We may only record that it is a submission of the appellant that the assessing authority had not given or recorded any finding to the effect that presence of witnesses cannot be obtained without undue delay or expense, which the officer concerned considers to be unreasonable. Appellant, in this connection, has relied upon order dated 7th January 2009 and had urged that summons were issued only once but no opportunity was granted to the appellant to serve the summons on the witnesses. It is stated that the appellant should have been given another opportunity. It is also contended that the question of quantum of demand is also an issue and that the Tribunal has accepted the entire quantum/ addition. It is pointed out that the assessment order confirms the entire demand mentioned in the show cause notice dated 17th October 2007 for a sum of Rs. 1,48,60,803/- and a penalty of equal amount has been imposed along with an interest thereon. A penalty of Rs. 50 Lakhs has been imposed on the Director.
18. As we find that the matter required a remit for a fresh decision, we are not specifically answering the question whether Section 9D can be invoked and relied upon by the Tribunal when the adjudicating authority has not relied upon the said section in its order. This aspect can be examined by the Tribunal while deciding the matter on remand. We may, however, note the contention of the Revenue that Section 9D is a procedural section and when conditions mentioned in the said section are satisfied, it comes into operation and can be applied and it is immaterial whether the Assessing Officer has specifically invoked the said provision or mentioned the same. The contention of the appellant is to the opposite.
19. In view of the aforesaid discussion, question No. 2 raised above is partly answered in favour of the appellant and against the respondent and it is held that this aspect has to be re-examined and reconsidered by the Tribunal. In respect of question No. 1, it is directed that the Tribunal will re-examine the question of application of Section 9D of the Act.
20. The appellant during the pendency of the investigation had deposited a sum of Rs. 28 lakhs on account of excise duty. As per the impugned assessment, total duty evaded by the appellant is Rs. 1,48,60,803/-. Penalty of an equal amount has been imposed. Even if Rs. 28 lakhs is reduced from the aforesaid amount of Rs. 1,48,60,803/-, the appellant is still liable to pay Rs. 1,20,60,803/- towards duty as per the assessment order. The stay application filed by the appellant before us has been dismissed. Thus, the entire demand including penalty can be recovered. As an interim measure, we feel that the appellant should deposit a further sum of Rs. 30 lakhs within one month with the respondent Revenue and should file an undertaking with the Tribunal that they shall no create any encumbrances and dispose of their immovable assets including fixed plant and machinery without the permission of the Tribunal. Details of existing encumbrances, if any, on the assets, will be stated in the undertaking. The aforesaid direction has been given to cut short delay and on balance of equities. As noticed above, the orders passed on the stay application is itself subject matter of challenge in this appeal on which an order of remand for fresh decision has been passed.
21. the appeal is accordingly disposed of. No costs. 1.7 Accordingly the matter was heard afresh.
2. Shri B L Narsimhan, Advocate the Ld. Counsel for the appellant pleaded that the main evidence relied upon by the Department against the appellant is the statements if various suppliers whose names are mentioned in para 16 of the order- in-original, coupled with statement of Sh. Subhash Khattar, Managing Director, that the Narayana Industrial Area factory of the appellant company was selling its goods directly to various customers and not through the trading division, that the trading division of the appellant company was procuring the same goods from a number of other suppliers, that the Departments case is mainly based on the statements of some of the suppliers stating that they had issued only bogus invoices without supply of any goods and had returned the sale proceeds in cash after deducting the sales tax and their commission, that the appellant had sought cross examination on those witnesses, but the same was not allowed, that the statements of the suppliers stating that they had not supplied any material and had only issued bogus invoices and the payment received from the appellant company had been returned to them in cash, after deducting their commissions and sales tax are not supported by any other independent evidence, that no inquiry has been made in respect of the bank accounts of the suppliers, that in view of this, the cross examination of the suppliers whose statements have been used by the Department against the appellant company was necessary and the same had been specifically sought by the appellant but the same was not allowed, that while the Department relies upon the statement of one Sh. Mahesh Kaushik, this person is still doing business with the appellant, that the Honble High Court in the case of J&K Cigarettes Ltd.vs. Commissioner of Central Excise reported in 2009 (242) ELT 189 Del, has, after discussing section 9D, has held that the right to cross examination, in quasi judicial proceedings can be taken away only in the circumstances specified in section 9D(1)(a) and for this purpose, the Adjudicating Authority is to form opinion on the basis of material of records that the grounds stipulated in section 9D(1)(a) of the Central Excise Act, 1944 exist, and are established and the opinion must be supported by the reasons and in this regard the decision is to be taken after hearing the affected party, that the implication of this judgement of the Delhi High Court is that when the a person, whose statement has been relied upon by the Department in support of allegation of duty evasion against an assessee, is available, the statement can be used against that assessee, only if, after permitting the witlessnesss cross examination, the Adjudicating Authority is of the opinion that the statement is true and that in the cases where the person who made the statement and which is sought to be used against the assessee is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse authority on whose presence cannot be obtain without the amount of delay, or expense, which under the circumstances of the case the Adjudicating Authority considers unreasonable, a decision in this regard has to be taken after hearing the affected party, that in the present case while the Adjudicating Authority had not invoked section 9D(1), this section was invoked by the Tribunal which was not correct, that Honble Delhi High Court in the case of Basudev Garg vs. Commissioner of Customs reported in 2013 (294) ELT 353 Del. while interpreting the provision of section 138B of Customs Act 1962 which is in parameteria That the section 9D of Central Excise Act, 1944, has held that statement of witness cannot be used against an assessee without giving the assessee an opportunity to cross examine the witness, and that cross examination is valuable right of the noticees in quasi judicial proceedings which can have adverse consequences for them, and that it can be taken away only in the exceptional circumstances stipulated in section 138B of the Customs Act 1962, that in the present case the suppliers, on whose statements reliance is placed by the Department were registered with sales tax/VAT. Department and had paid sales tax on their sales, and in view of this when based on their statement, Department alleges that they had not supplied any material and had issued only bogus invoices, cross examination of those witnesses is a must and their statements cannot be used against the appellants without permitting their cross examination. He, therefore, pleaded that the impugned order is not correct.
3. Shri Pramod Kumar, the Ld. Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that in the factory of the appellant company, there was enough infrastructure available to manufacture the goods which were being traded from their trading premises, that though the appellant show a purchase of the slotted angles, shelves, cable trays etc., from 23 suppliers who are, either manufacturers or traders, on inquiry most of the suppliers have denied having supplied the goods, that the manufacturer-suppliers manufacture totally different items and similarly the trader suppliers were dealing in totally different items, that when confronted with the statements of suppliers, Sh. Subhash Khattar, Managing Director of the appellant company, could not give any explanation whatsoever, that when the suppliers from whom the purchase of slotted angles, shelves, cable trays etc., is shown, have denied having supply those goods and they were either not manufacturing those items or were not dealing in those items and when the appellant company had all the necessary infrastructure and capacity to manufacture those items, the inescapable conclusion would be that the slotted angles, shelves, cable trays etc., sold from the trading premises had actually been manufactured in the appellant companys factory and had been illicitly cleared without payment of duty, that in the background of these facts, denial of cross examination of the suppliers does not vitiate the proceedings, more so, when some of the suppliers were not even traceable.
4. We have considered the submissions from both the sides and perused the record. The undisputed facts are that while the appellant in their company in their factory at Narayana Industrial Area, manufacture slotted angles, shelves, cable trays etc., the same item are being treated by them from their trading division located at different premises. The allegation of the Department is that the goods manufactured in the factory premises of the appellant at Narayana Industrial Area were being clandestinely cleared to their trading premises without payment of duty from where the same were being sold and hence, all the goods sold from the trading premises had actually been manufactured by the appellant. It is on this basis that that duty demand of Rs. 1,48,60,803/- has been confirmed against the appellant along with interest thereon under section 11AB and while penalty of equal amount has been imposed on the appellant company under section 11AC, penalty of Rs. 50 Lakh had been imposed on Sh. Subhash Khattar, Managing Director of the appellant company. The evidence relied upon by the Department in support of the above allegation is that the suppliers from whom the appellant company claim to have procured the goods for being sold from their trading premises, are either not traceable or they do not have the facility to manufacture those items or they are not trading in those items and in number of cases, the suppliers have denied having supplied the goods and have admitted that the payments received from the appellant company had been returned by them to the appellant company in cash after deducting their commission and the sales tax. The claim of the appellant company is that all the goods manufactured in their factory premises at Narayana Industrial Area were sold directly from the factory and the goods sold from the trading division were procured from the 23 suppliers and though, in some cases, the suppliers have given statements that they had not supplied any goods to the appellant but had only issued bogus invoices, and that the payments received from the appellant company for the goods shown to have been sold have been returned by the appellant company in cash to them after deducting their commission and sales tax, no inquiry has been conducted in respect of the bank accounts of those suppliers to prove that the cheques issued by the appellant company as payment for the goods purchased from them had been deposited in their accounts and immediately, thereafter, the amounts had been withdrawn. Thus, the evidence in support of the allegation of duty evasion against the appellant company is only the statements of suppliers, whose correctness is being disputed by the appellant. Earlier, the Tribunal in its final order dated 30.04.2010, had invoked section 9D of the Central Excise Act, 1944 for relying upon those statement in support of the allegation of duty evasion against the appellant company, but Honble High Court vide judgment dated 08.11.2011, has remanded the matter to the Tribunal to re-examine the application of section 9D. In this judgment Honble High Court also considered the question as to whether failure on the part of the Central Excise Department to produce the witnesses on whose statement the Department is relying upon and whether the failure of the appellant to press for the production of the witnesses for cross examination would amount to the appellant giving up their rights for cross examining those witnesses and Honble High Court decided this question in favour of the Appellant and against the Department. Thus, in the cases where the Department relied upon the statements of certain suppliers in support of the its allegation of duty evasion against the appellant, but failed to produce those suppliers (witnesses) for cross-examination, the appellant cannot be treated as having given up their right of cross examination, even if, they did not specifically press for production of those witnesses.
5. However, the question to be re-examined is as to whether the statements of witness which is being relied upon by the Department in support of allegation of duty evasion against an assessee would be admissible as evidence in terms of Section 9D without permitting his cross examination.
6. In terms of section D(1) of Central Excise Act, 1944, a statement made and signed by a person before any Central Excise Officer of a Gazetted Rank during course of any inquiry or proceeding under this act shall be relevant, for the purpose of proving, non-prosecution for an offence made under this act, the truth of the facts which it contains
a) When a person who made the statement is dead, or cannot be found, or is capable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtain 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 the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.
Thus, section 9D(1) of the Central Excise Act, 1944 is applicable to prosecution proceedings before a court and for such prosecution proceedings, any statement given by a person before Gazetted Central Excise Officer under section 14 of the Central Excise Act 1944, would be relevant for proving the truth of the facts which it contains only in two situations. The first situation is that the person who had made the statement is examined as a witness before the court and the court is of the opinion that his statement should be admitted as evidence in the interest of justice. The other situation in which such statement can be admitted as evidence without cross examination is that the person who made the statement is dead, or cannot be found, or is incapable of giving evidence, or is kept out of way by the adverse parties, or whose presence cannot be obtained without any account of delay or expense which the court under the circumstances of the case considers to be unreasonable.
6.1. Sub section (2) of the section 9D states that the provisions of sub section (1), so far as may be, applied in relation to any proceedings under this act other than proceedings before the court, as they applied in relation to a proceeding before the court. The implications of sub section (2) of section 9D, is that the provisions of sub section (1) of Section 9D, as far as possible, would be applicable to the Adjudication Proceedings also. Therefore, for the purpose of adjudication proceedings when the adjudicator relies upon the statement of a person in support of the allegation of duty evasion against an assessee, that statement in terms of clause (b) of the section 9D(1) would be admissible only when the person has been examined as a witness in course of adjudication proceedings, that is, his cross examination has been allowed and after cross examination, the adjudicator is of the view that his statement should be admitted in evidence. The only situation in which the statement of a witness can be admitted as evidence and considered relevant in support of the allegation of duty evasion against an assessee without cross- examination are those enumerated in clause (a) of section 9D(1), that is, 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 parties, or whose presence cannot be obtained without amount of delay or expense which is unreasonable.
8.2. In terms of the judgment of Honble Delhi High Court in the case of J&K Cigarettes ltd. Vs CCE reported in 2009 (242) ELT 189 Del. for invoking clause (a) of section 9D(1), the adjudicator would have to give a specific finding that the situations as enumerated in this clause exist and for this purpose he will have to give a hearing to the affected party. Just because a witness whose statement has been relied upon in support of the allegation of duty evasion against the assessee does not turn up for cross examination, his statement cannot be relied upon by invoking clause (a) of the Section 9D(1). If the person is available for cross examination and the situation enumerated under section 9D(1)(a) are not there, his statement would be admissible as evidence only when he has been examined as a witness, that is, his cross examination has been allowed and after cross examination of the Adjudication, consider the statement to be true.
9. Cross examination would be an absolute necessity when the statement of a witness is the only or the main evidence in support of allegation of duty evasion against an assessee and as such there is no other independent evidence corroborating statement of the witness. It is seen that Honble High Curt in the case of Basudev Garg Vs Commissioner of Customs reported in 2013 (294) ELT 353 Del. with regard to the provision of section 138B of Customs Act 1962, which are in paremeteria with the provisions of section 9D of Central Excise Act 1944 has also taken the same view. Honble Allahabad High Court in the case of CCE Allahabad vs Govind Mills Ltd. reported in 2013 (294) ELT 361 All. has also held that section 9D(1) of Central Excise Act 1944 can be applied only if the person is dead or cannot be found, or is incapable of giving evidence, or is kept out of way by the adverse party etc., but when the witness is available, his cross examination has to be permitted before decided to relied upon his statement. Honble Allahabad High Court in this judgment, relying upon the Apex Court in case of State of Kerala vs KT Shaduli Grocery Dealer reported in AIR 1977 SC-1627 and KL Tripathy vs SBI reported in 1984 SC (273) has held that the opportunity of being heard also include the right to cross examine the witness. The provisions of section 9D(1) of the Central Excise Act 1944 are in accordance with this general principle.
7. In the present case while the allegation of duty evasion against the appellant is based on the statements of suppliers, admittedly their cross examination has not been allowed. If the adjudicator wants to invoke clause (a) of Section 9D(1), a finding has to be given that the situations mentioned in this clause exist after hearing the appellant. In this case admittedly neither a finding has been given after hearing the appellant that the witness whose statements are sought to be relied upon by the Department in support of the allegation of duty evasion against the assessee are either dead, or cannot be found, or are incapable of giving evidence, or are being kept out of way by the adverse party, or their presence cannot be obtained without an amount of delay, or expense which is unreasonable nor the witnesses who are available, have been made available for cross examination which, in our view, is necessary.
8. In view of the above discussions, the impugned order is set aside and the matter is remanded to the Commissioner for De novo adjudication in accordance with our observations in this order.
(pronounced on 04.03.2015) (Rakesh Kumar) Member (Technical) (S.K. Mohanty) Member(Judicial) Neha Page | 1