Custom, Excise & Service Tax Tribunal
Diamond Timber Industries vs Cce & St- Bhavnagar on 9 February, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Appeal No : E/1119-1123,1177-1179,1210/2009 (Arising out of OIO-29-BVR-COMMISSIONER-2009 dated 30.03.2009, OIO-30-BVR-COMMISSIONER-2009 dated 30.03.2009 passed by Commissioner of Central Excise- Bhavnagar) 1. Diamond Timber Industries 2. Mukesh Bhartia 3. Shri Bhavani Plyboard Pvt Ltd 4. Deepa M Bhartia 5. Mukesh Bhimraj Bhartia 6. Sunil Shridhar Bhojkar 7. Shankarlal Gupta 8. Mukeshkumar Arjunlal More 9. Gaurishankar Lakhotia : Appellant (s) Versus CCE & ST- Bhavnagar : Respondent (s)
Represented by:
For Appellant (s) : Shri Anand Nainawati, Advocate For Respondent (s): Shri J. Nagori, Authorised Representative CORAM:
Dr. D. M. Misra, Honble Member (Judicial) Mr. Raju, Honble Member (Technical) Date of Hearing/Decision : 09.2.2018 Order No. A/10664-10672/2018 Per: Dr. D. M. Misra These appeals are filed against respective orders-in-appeal passed by the Commissioner of Central Excise, Bhavnagar.
2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of commercial plywood and block boards. During the course of investigation, a search was conducted in the factory premises of the appellants on 22.12.2005, excess and unaccounted physical stock of 1137.98 Sq. Mtrs. Of commercial plywood and block board of different qualities were noticed. Later, on completion of investigation, show cause notice was issued to the appellants alleging that clandestine manufacture and clearance of finished excisable goods involving a total duty of Rs. 1.67 Crores, and recovery of the said amount with interest and penalty; personal penalty on other co-notices proposed under Rule 26 of CER, 2002. On adjudication, the demand was confirmed with interest and equal amount of penalty and personal penalty on various other co-noticees. Hence, the present appeals.
3. At the outset, the Ld. Advocate has submitted that the appellants have requested cross examination of six witnesses, namely, Shri Dharmendra Chauhan, Shri Ramjibhai Rout, Shri Kaushik Dahiya, Shri Chandresh Saraswat, Shri Mohammed Hussain M, and Shri Vijay Lokhani. The Ld. Commissioner has proceeded without completion of the cross-examination of the said witnesses observing that on the scheduled date of hearing, the witnesses failed to remain present and the appellants had proceeded with the hearing without insisting for cross-examination. The Ld. Advocate has vehemently argued that once the appellants had requested for cross examination, then it is the duty of the department to produce the witnesses for cross examination, as the statements of the said witnesses have been relied upon in issuing the demand to the appellants. It is his contention that not allowing cross examination of these witnesses has resulted in gross violation of principles of natural justice in view of the judgement of the Honble Supreme Court in the case of Andaman Timber Industries ltd. Vs. CCE, Kolkata-II 2015 (324) ELT 641 (S. C.).
4. Per contra, the Ld. AR for the Revenue has submitted that since the appellants have not shown interest for cross examination on the date of hearing, it is deemed that they did not wish to press for cross-examination. Further, he has submitted that without statements of the witnesses, from other corroborative evidences available on record, the demand with interest and penalty against the appellants could be sustained.
5. Heard both sides and perused the records. We find that in confirming the demand against the appellants, the adjudicating authority in the impugned order has referred and relied upon statements of the aforesaid persons. Also, we find from the order of the ld. Commissioner that even though in the defence submission he has recorded that appellants have requested for cross examination of the witnesses, however, while denying the cross examination observed that on the scheduled date of hearing, the appellants had not requested for cross examination. We do not find merit in the said observation in denying the cross examination of the witnesses, whose statements have been relied upon for issuing and later confirming the demand. Therefore, we direct the adjudicating authority to allow cross examination of the aforesaid witnesses in view of the principles of law laid down by the Honble Supreme Court in a series of cases including in Andaman Timber Industries Ltds case (supra). In the result, the impugned order is set-aside and the appeals are allowed by way of remand.
(Operative part of the order pronounced in the Court)
(Raju) (D. M. Misra)
Member (Technical) Member (Judicial)
G.Y.
4
Appeal No. E/1119-1123,
1177-1179,1210/2009