The Ahmedabad Bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) ruled that the Adjudicating Authority is not empowered to act under whims of to allow or reject request for cross-examination under Section 9D of the Central Excise Act, 1944.
The appeals are directed against the order whereby excise duty of R 1,52,06,323/-, equal penalty, demand of interest and personal penalty on Shri Abbasbhai for Rs. 15,00,000/- were confirmed on the charge of clandestine removal of the goods for the period March-2009 to August-2012. Therefore, the present appeals were filed by the appellants.
Paresh V Seth, Counsel appearing on behalf of the appellant submitted that the entire case was made out on the basis of the printout taken from the computer lying in the factory premises and the statements of the various persons. It is his submission that regarding the printout taken from the computer the provision Section 36B of the Central Excise Act was not followed. Therefore, the computer printout cannot be used as evidence in this case.
The counsel further submitted that on the specific request of cross-examination of the witnesses whose statements were heavily relied upon, was rejected. Therefore, the order without allowing the cross-examination of the witnesses is not sustainable.
Rajesh Nathan, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterated the finding of the impugned order.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and Raju, Technical Member observed that “Mainly the case is based on statements of various persons. The appellant have requested for cross-examination of the witnesses, which has been rejected by the Adjudicating authority. In the Adjudication process, the conducting the examination-inchief and thereafter offering the witness to appellant for cross-examination is mandatory under Section 9D of Central Excise Act, 1944.”
“From the plain reading of the above Section 9D, it can be seen that it is not the whims of the Adjudicating authority to allow or reject the request of cross-examination. As per the above statutory provision, if the appellant dispute the statements which are relied upon for adjudication it is incumbent on the adjudicating authority to allow the cross-examination of the witnesses and thereafter if the outcome of cross-examination is in consistence with the statement given by the witnesses, the same can be admitted as evidence. Therefore, we are of the view that the cross-examination is necessary for arriving at a fair trial of the case” the Tribunal concluded.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
