TMI Blog2010 (3) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 40 lakhs imposed on a director of the company. 2. After examining the records and hearing both sides, we note that the impugned demand of duty is on MS ingots which was found to have been clandestinely manufactured and cleared by the assessee during the period from February 2003 to August 2007. It was worked out on the basis of electric consumption. One of the evidentiary materials considered by the Commissioner was a report of Dr. (Prof.) N.K. Batra of the Indian Institute of Technology, Kanpur, according to which the electrical energy required for the production of 1MT of MS ingots in an induction furnace would be in the range of 815-1046 KWH. The adjudicating authority, however, chose to rely on the results of an experiment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stay of recovery pursuant to a remand order of the Hon ble High Court of Delhi. In this connection, he has produced a copy of stay order no. 200-203/09 dated 13.2.2009 passed by a Division Bench of this Tribunal at New Delhi wherein the Tribunal's final order in R.A. Castings case was followed and the reliefs of waiver and stay were granted. A copy of the High Court s remand order in writ petition no. 8141/08 has also been produced, wherein the Tribunal was advised to take into account the decision in R.A. Castings case and pass fresh order on the assessee's stay application. 4. Ld. counsel has also vehemently argued that the assessee had an unquestionable right to cross-examine some of the witnesses named by them, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e different functionaries of the assessee-company. He submits that, though the Director's oral evidence was by and large evasive, the oral evidence given by the Excise Clerk and the Accountant of the company was consistently to the effect that production was suppressed during the material period. Though the Consultant retracted his statement and that too belatedly, the excise clerk never did so and, therefore, the evidence given by the functionaries of the company goes against the assessee. This evidence, ld. JCDR submits, is corroborated by reliable experimental results. Ld. JCDR has also relied on case law. He has referred to Triveni Rubber Plastics vs. CCE 1994 (73) ELT 7 (SC) wherein the Hon'ble Supreme Court had occasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive opportunity of giving a final reply to the show-cause notice was denied. We are not inclined to accept the plea that, before filing reply to a show-cause notice, the noticee should be allowed to cross-examine the persons whose statements under Section 14 of the Act were recorded and relied upon in the notice and also the departmental officers who recorded such statements or drew proceedings like panchnama. The department s pleadings are contained in the show-cause notice and the evidentiary support thereof is claimed from the enclosed documents. It is open to the noticee to plead all the relevant facts within his command and to rely upon his own documents or other materials, in his reply to the show-cause notice. It is during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... induction furnace and other auxiliary equipments were in operation. Therefore, obviously, it was not possible for the department to quantify separately the amount of electricity consumed in the induction furnace. The adjudicating authority appears to have considered all these aspects. The total consumption found in the factory was over 5000 KWH. After giving reasonable allowance to the consumption of energy by the auxiliary equipments, the adjudicating authority arrived at the net value of 1239 KWH as the amount of electricity required for production of 1MT of MS ingots in the induction furnace. The suppressed quantity of MS ingots and the amount of duty payable thereon were estimated on this basis. Prima facie, on these facts, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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