D.M. Misra ORDER
Dr. D.M. Misra, Member (J)
1. Heard both sides. These two appeals are filed against the Order-in-Appeal No. KRS-85-86-VAPI-2010 dated 31.3.2010 passed by the Commissioner, Central Excise & Service Tax (Appeals), Vapi.
2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of copper tubes and availed the benefit of CENVAT credit on various inputs, including copper ingots. On the basis of investigation by DGCEI, it was alleged that the appellant during the period May 2003 to April 2004 had wrongly availed credit of Rs. 40,99,008/- only on the basis of input invoices without receiving goods mentioned against those invoices in their factory premises. Accordingly, the assessee was issued with a show cause notice for recovery of the said inadmissible credit along with interest and penalty. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said order, they filed appeal before the ld. Commissioner (Appeals), who in turn, rejected their appeals. Hence, the present appeals.
3. Ld. Consultant Shri Babladi for the appellant, at the outset submits that relevant relied upon documents and also unrelied upon documents were not handed over to the appellants, therefore, they could not file a proper reply to the show cause notice. It is also his grievance that in the interim reply to the show cause notice, they requested for cross-examination of various witnesses, however, the same was denied to them. Further, he submits that proper opportunity of hearing was not extended to them by the adjudicating authority inasmuch as the intimation of personal hearings was communicated by a single letter. He submits that the witnesses, namely, S/Shri Inderjeet Singh, Authorised Signatory of M/s. Satkar Tempo Transport Union; Kulwinder Singh, Partner of New Satkar Tempo Transport Union; Ashok Bandmal Bafna Broker of M/s. ALPL; Arvind Ghewarchand Jain, Metal Broker and Ashok Parmer, Metal Broker, whose statements were relied upon in the show cause notice as well as by the adjudicating authority in confirming the demand, should be allowed to be cross-examined. In support he has referred to the decision of the Hon'ble Supreme Court in the case of Andaman Timber Industries vs. C.C.E., Kolkatta II MANU/SC/1250/2015 : 2015 (324) ELT 641 (SC).
4. Ld. A.R. for the Revenue submits that since they did not appear before the adjudicating authority, so the order was passed on the basis of the evidences available on record. Further rebutting the argument of the Appellant that the documents were not supplied to them, he has placed a communication dt. 12.05.2017 from the Supdt. DGCEI informing that all documents relied and unrelied were handed over to the Appellant on 21.01.2010.
5. On going through the records, I find that the assessee-appellant has requested cross-examination of the above said witnesses. The authorities below had denied cross-examination of the said witness without any valid reason. Also, the statements of the said witnessed were relied and accepted by the adjudicating authority in confirming the proceeding against the Appellant. In these circumstances, I am of the view that the adjudicating authority ought to have allowed cross-examination of these witnesses and also should have afforded reasonable opportunity of hearing instead of giving three dates of hearing in one single letter. Needless to mention, it has been held in a series of cases including in the case of Andaman Timber Industries vs. C.C.E., Kol........