Custom, Excise & Service Tax Tribunal
Shri V.K. Jain, Authorised Signatory vs C.C.E. Jaipur-I on 13 December, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. E/1972-1975/2010-EX(SM)
[Arising out of Order-in-Appeal No. 196-199(DK)CE/JPR-I/2010 dated 10.04.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].
For approval and signature:
Hon'ble Mr. Ashok Jindal, 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?
No
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?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Associated Pigments Ltd.
Shri H. K. Verma, Authorised Signatory
Shri S.N. Sahaya, Director,
Shri V.K. Jain, Authorised Signatory .Applicants
Vs.
C.C.E. Jaipur-I .Respondent
Appearance:
None appeared for the Applicants Shri M.R. Sharma, DR for the Respondent CORAM:
Hon'ble Mr. Ashok Jindal, Member (Judicial) Date of Hearing: 13.12.2016 FINAL ORDER NO. 55878-55881/2016-EX(SM) Per Ashok Jindal:
The appellants are in appeals against the impugned order wherein demand on duty has been confirmed on the allegation of clandestine removal of the goods by the appellants, consequently penalty on all the appellants were also imposed.
2. None appeared on behalf of the appellant nor any request for adjournment has been received, but the appeals are taken up for disposal on merits.
3. Heard the Ld. DR and perused the record.
4. On perusal of the record, I find that the sole case of the appellants depends on the cross examination of the drivers / transporters who have given inculpatory statement against the appellants. The appellants wants cross examination of all the transporters / truck drivers who has transported the goods but in the impugned order Ld. Commissioner (A) has recorded a clear cut finding that appellants did not made any request to the adjudicating authority for cross examination of the witness. I have gone through the adjudication order. In adjudication order para 34 is reproduced here as under:
They requested the cross examination of the Truck drivers / transporters whose statements have been relied upon.
5. The adjudicating authority have not considered this request of the appellants while adjudicating the case whereas in the impugned order the ld. Commissioner (A) has recorded the contention as under:
The plea of the appellant that the requests for cross examination of all the relevant persons like truck drivers / owners of the vehicles was not considered by the Adjudicating authority which they wanted only if the reason to believe that the statement was false and cannot be relied upon and is not tenable in view of the fact that no such request appears to have been made before the adjudicating authority.
6. This finding of the Ld. Commissioner (A) is factually incorrect as the adjudicating authority has clearly recorded that the appellants asked for cross examination of the witness.
7. In view of the above discussion, I find that impugned deserves no merits, therefore same is set aside. Considering the fact that to decide the case the cross examination of witness is necessary as per section 9(D) of the Central Excise Act 1944 and without giving cross examination of witness is gross violation of principle of natural justice, therefore matter needs to be re-adjudicated after giving cross examination of the witness as per the procedure laid down in the section 9(D) of the Central Excise Act 1944. Therefore, after setting aside the impugned order the matter is remanded back to the adjudicating authority to decide afresh after following procedure laid down under section 9(D) of the Central Excise Act 1944 and thereafter to decide the case on its own merits.
8. Appeals are disposed of in above terms.
[Dictated and Pronounced in the open Court] (Ashok Jindal) Member (Judicial) Bhanu 3 E/1972-1975/2010-EX(SM)