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2019 (6) TMI 1033 - CESTAT ALLAHABADImposition of penalties u/s 112(a) as also under Section 114AA of the Customs Act - advance license for duty free import of the raw materials i.e. Remelted Lead Ingots - the revenue’s allegations and findings are to the effect that entire imported lead ingots, which were meant for utilization in the manufacture of lead alloys at the appellants factory located at Kathua, stand diverted by them in the local market - HELD THAT:- Such findings are primarily based upon the statement of one Shri Ved Nath Tripathi of M/s Grape Marketing Pvt. Ltd. Even that statement is not specific but a general statement of clearance of the lead alloys ingots from the godown of M/s Grape Marketing Pvt. Ltd. The said deponent was neither examined by the adjudicating authority nor by the appellant during the course of adjudication and as such the reliance on the said sole statement of Shri Ved Nath Tripathi is neither justified nor warranted. Revenue has not been able to bring on record any other evidence to establish its case. On the contrary, the goods were transported from ICD, Loni to New Delhi and from New Delhi to Kathua under the cover of proper documents issued by the transporters. Revenue has not bothered to investigate the transporters and record the statements of their representative so as to establish beyond doubt that the GRs issued by them were not proper and were fake - the appellant had produced on record the toll receipts issued by to toll check post located at Lakhnpura, thus indicating and establishing beyond doubt that the goods passed through the said check post. The Original Adjudicating Authority has neither referred to nor discussed the said plea of the assessee. The revenue is not disputing the fact that the appellant had exported 103.76 MT of lead alloys. Admittedly, the lead alloys can be manufactured by using the raw material. If the said imported lead ingots have not reached the appellant’s factory at Kathua as alleged by revenue, we fail to understand as to how the appellant could have manufactured and exported the said quantity of lead alloys. Admittedly, lead alloys cannot be manufactured from Vacuum and the revenue has not even alleged that they have procured the lead ingots from the other source. In the absence of any evidence to show alternate source of procurement of lead ingots and in the absence of any dispute of export of the final product lead alloys, the revenues case is on weak legs and cannot be sustained. Inasmuch as, the appellant has accepted their liability in respect of that quantum of imported lead ingots which could not been utilized by them for export of the goods and had already discharged duty liability to the tune of ₹ 40 lakhs approximately, we are of the view that the balance confirmation of demand would not sustain - Appeal allowed in part.
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