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2018 (6) TMI 873 - AT - Central ExciseClandestine removal - validity of RUD (relied upon documents) - The whole case of the department is based upon statement of Sh. Shivji Gupta dated 26.03.2008 - Cross-examination of witesses - uncorroborated statements - necessary infrastructure to manufacture copper ingots or rods from copper cathode - diversion of goods - burning loss - CENVAT credit on copper cathode denied - benefit of N/N. 56/2002-CE dated 14.11.2002 - Penalty - Difference of opinion - majority order. As held by Learned Member (Technical), the re-appraisal of evidence, i.e., the statement of Shri Shivji Gupta is required with regard to other corroborative evidences and as such the matter needs to be remanded? - Held that:- Ld. Member (J) has observed that only the statement dated 30/08/2010, which was in compliance with the provisions of Section 9D can be considered, but Ld. Member (T) has observed that the matter may be remanded for examination of the statement viz-a-viz corroborative evidences - In the facts and circumstances of the case the statement dated 26/03/2008, which has been alleged to have been obtained under duress, cannot be relied to support the allegations against JVIPL as well as GRPL. I agree with the findings of Ld. Member (J) in this regard. Whether as held by learned Member (Technical) the statement of Shri V. K. Mittal is admissible as evidance by way of corroborative evidence, even in absence of cross examination? - Held that:- hri V.K. Mittal, partner of M/s Veekay General Industries, happens to be a competitor of JVIPL, and in his statement dated 08/09/2010, has stated that copper cathods could be cut into pieces using hand cutter. But Shri Mittal did not turn up for cross examination. M/s JVIPL have countered such statement by means of Chartered Engineers Certificate who has opined otherwise - Shri Mittal’s statement cannot be admitted as evidence at face value since he is a partner of a competitor. The statement does not appear to have been admitted by the adjudicating authority as per the provisions of Section 9D and since the appellants were not extended the opportunity of cross examining him - the statement is not admissible as held by Member (Judicial). As held by learned Member (Technical) that the issue of burning loss in support of the allegation of diversion of copper cathode, needs reappraisal? - Held that:- Burning loss in the case of an induction furnace arises for a variety of reasons and differences in burning loss cannot ipto facto support the allegation of diversion of copper cathode. The argument advanced that the burning loss is more in respect of JVIPL since they have an open furnace appears to be reasonable - no adverse inference can be drawn due to difference in burning loss in the two factories. Whether as held by Member (Judicial), in view of undisputed report of Commissioner, Jammu dated 25.05.2010, bassed on 'Plant Based Checks', JMWIPL, Jammu have also used copper scrap in addition to copper cathode, hence allegation of Revenue as to diversion of cathode by JVIPL & GRPL does not stand, and appeals are rightly allowed? - Held that:- The Commissioner (Jammu) who is the Jurisdictional Commissioner in respect of JMWIPL who has sent his report 25/05/2010 in which, after investigating into the affair of JMWIPL, has recorded the fact that JMWIPL have used both copper scrap as well as copper cathode. He has based the report on the observations recorded in the records of JMWIPL by Jurisdictional Central Excise Officers as well as the officers of District Industries Centre who have attested the receipt of various raw materials in the said unit - thus, the undisputed report of Commissioner (Jammu) dated 25/05/2010 where the above observations are found, negates the allegations of Revenue about the diversion of cathode by JVIPL and GRPL. Majority order:- In view of agreement with the decision of Ld. Judicial Member by the third Member, the impugned orders are set aside and appeals are allowed.
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