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2017 Supreme(Raj) 2564
RAJASTHAN HIGH COURT (JAIPUR BENCH)
K.S. Jhaveri, Vijay Kumar Vyas, JJ.
Shree Parvati Metals - Appellant
Versus
Union Of India - Respondent
Central Excise Appeal No. 62 of 2016
Decided On : 06-12-2017
Priyesh Kasliwal, Advocate, for the Appellant; Kinshuk Jain, Advocate, for the Respondent
The cross-examination is a right of the assessee.
Headnote:
CENTRAL EXCISE - CROSS-EXAMINATION - CENVAT CREDIT - Where while considering the matter the statement which was recorded of the Foreman whether the assessee is entitled for cross-examination or not while disallowing the CENVAT credit, proprietor of the firm which was considered on the basis of evidence available on record. Taking into consideration the judgment of various High Courts and Supreme Court, the cross-examination is a right of assessee. In this case there is ambiguity in the statement of employee.
Fact of the Case:
The assessee challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee. The assessee has taken us to the order of first authority where in it has been observed that the noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Noticees Company. The noticees demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply. Further he has taken us to clause (iv) of the order of First Authority which reads as under :- (iv) The noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Notices Company. The notices demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply. I find that Shri Naresh Singh Foreman was employee of the noticee and there appears no reason to allow cross examination of their own employee by them.
Finding of the Court:
The court held that the cross-examination is a right of assessee. In this case there is ambiguity in the statement of employee. Thus, it is clear that the statement of Foreman requires cross-examination.
Issues: Whether statement given by the foremen dated 7-12-2006 be used against the appellant without affording the opportunity of cross examining, while holding disallowance of Cenvat credit of Rs. 10,27,545 and the statement of the properietor of the firm without considering the corroborative evidence as were available on record as such conclusion arrived at by the tribunal can aid to the proper?
Ratio Decidendi: The court relied on various judgments of different High Courts and Supreme Court wherein it has been held that the cross-examination is a right of the assessee. The court also held that in this case there is ambiguity in the statement of employee. Thus, it is clear that the statement of Foreman requires cross-examination.
Final Decision: The appeal stands disposed of. The matter is remitted back to the Tribunal with a view to have a cross-examination of the Foreman. It will be open for the parties to cross-examine the Foreman. The court made it clear that it has not decided any other point accept cross-examination nor disturbed any finding of any authority.
JUDGMENT
K.S. Jhaveri, J. —By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee.
2. This court while admitting the appeal on 4-10-2017 framed the following question of law :-
"Whether statement given by the foremen dated 7-12-2006 be used against the appellant without affording the opportunity of cross examining, while holding disallowance of Cenvat credit of Rs. 10,27,545 and the statement of the properietor of the firm without considering the corroborative evidence as were available on record as such conclusion arrived at by the tribunal can aid to the proper?"
3. Learned counsel for the appellant has take us to the order of first authority where in it has been observed as under :-
(x) The noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Noticees Company. The noticees demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply.
4. Further he has taken us to clause (iv) of the order of First Authority which reads as under :-
(iv) The noticee submitted that Show Cause Notice is also placing reliance on the statement of Shri Naresh Singh Foreman of the Notices Company. The notices demanded cross examination of Shri Naresh Singh and another time of 15 days after cross examination for submission of Final Reply. I find that Shri Naresh Singh Foreman was employee of the noticee and there appears no reason to allow cross examination of their own employee by them.
5. Thereafter the ground was denied which can be established from the record.
6. He has further taken us to the order of the Tribunal where Paragraph 4 and 5 it has been observed as under :-
"4. I have considered the submissions from both sides and perused the records.
5. As regards the cross-examination of Shri Naresh Singh, Foreman is concerned, it is settled law that if the statement of the person is relied upon and the appellant seeks cross-examination of that person, it is to be allowed if not allowing cross-examination will cause prejudice to the appellant [Supreme Court judgments in the case of Dharampal Satyapal Ltd. - 2015 (8) SCC 519 refers]. As the statement of Shri Naresh Singh is relied upon against the appellant not allowing his cross-examination does cause prejudice to the appellant and therefore in the absence of his cross-examination, Shri Naresh Singh''s statement cannot be used as evidence against the appellant [Refer SC judgment in the case of CCE Nagpur v. Ballprpur Industries 2007 (215) E.L.T. 489 (S.C.)] . However, I find that the proprietor himself and categorically admitted in his statement dated 7-10-2006 that he never received any coil or plates of thickness below 10mm in his factory. There was no retraction of the statement nor any allegation that the same was obtained under duress. Not only that in his subsequent statement recorded much later on 2-4-2008, he reiterated that coils of thickens below 10mm were never received in his factory. The second statement also was never retracted. Thus proprietor''s statements are of full evidentiary value. His statements fully and decisively establish the alleged offence. The Chartered Engineer Certificate produced by the appellant merely states as under :
This is to certify that M/s. Shree Parvati metals, E-6, RIICO Industrial Area, Bhiwadi is a registered manufactures of different type of machines such as Hydraulic Presses. Mechanical machines & other in which they use various type of Principle Raw materials as CR Sheets, HR Sheets, M.S. Sheets of various thickness i.e. 2mm ot 100mm. I have visited their factory premises and saw all the process.
The verification of raw material the Bills and Photograpsh are attached with the certificate.
Place : Bhiwadi
Date : 12-8-2008
Signature & Seal of Chartered Engineer
Name : A.K. Khanna
Registration No. : M-10672/91995
Registered w
