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2019 (4) TMI 437 - HC - Central ExciseClandestine removal - fly ash bricks containing 48.2% of ESP dust by weight - appellants were alleged to have manufactured fly ash bricks and not ESP dust bricks - suppression of facts or not - extended period of limitation - Held that:- The issue as to whether the appellants are entitled to concessional duty rate or exemption under Notification No. 5/2009-C.E. has been dealt with by the Tribunal in its order dated 9-2-2017 by substituting para 4 of its previous order dated 29-9-2016 by leaving it on the jurisdictional authority to verify the accounts maintained by the appellants and on fulfilment of such conditions for exemption under the subject notification, exemption available shall be extended to the appellants. The appellants have admittedly neither maintained any record nor filed any return even though they were selling goods as fly ash bricks, therefore, extended period of limitation in terms of Section 11A of the Act has rightly been invoked. The present is a case of wilful evasion of duty. Denial of cross-examination of chemical examiner whose report has been used against them - Held that:- At this stage, it would be appropriate to refer to the appellants’ reply to the show cause notice (Annexure-A/4) stating that the report of chemical examiner is not on record, therefore, copy of the same may be provided to them. This itself makes it apparent that the department has not relied on the chemical examiner’s report, therefore, there was no question of affording the appellants an opportunity to cross-examine the chemical examiner. The Schedule forming part of profit and loss accounts of the appellants for the period ending on 31-3-2005 and 31-3-2006 would refer to the items sold during the period specifically mentioning “sales of fly ash bricks”. Thus the appellants themselves were treating the bricks manufactured by them as “fly ash bricks” and not ESP dust bricks. Similar is the situation with the accounts ending on 31-3-2007. All the substantial questions of law are answered against the appellants - Appeal dismissed.
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