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2019 (10) TMI 165 - AT - Central ExciseBenefit of N/N. 6/02-CE dated 1/3/02 - manufacture and clearance of AC Pressure Pipes - AC Pressure Pipes, claimed by appellant to be made by using fly ash and which contain not less than 25% by weight of fly ash - period from December 2003 to March 2006 - Department’s contention is that the pipes in respect of which the exemption under Notification No. 6/02-CE dated 1/3/02 (Sl. No. 158) has been availed either do not contain fly ash or the fly ash content is much less than 25% and, hence, the same do not qualify for exemption - Extended period of limitation. HELD THAT:- From the findings of the Commissioner in para 27 of the impugned order it appears that during 2005-2006, the appellant used 9411.8 M.T. of cement for manufacture of AC Pressure Pipes containing only cement and not containing fly ash, while 46553.754 M.T. of cement had been used for manufacture of 53995.600 M.T. of Asbestos Cement Pipes containing fly ash. The fly ash content on this basis would come to 13.8% which is much less than the required 25%. Though the appellant plead that out of total 55965.554 M.T. of cement received at Bhilwara Plant, the quantity of 19882.4 of the cement had been sent to manufacturing unit at Ahmedabad and as such 26671.35 M.T. of cement had been used during 2005-2006 for manufacture of 53995.6 M.T. of Asbestos Cement Pipes containing fly ash, no evidence in this regard has been produced which makes the assertion doubtful. The entire case of the Department is made on the basis of statements of the various persons, who have not been examined by the adjudicating authority while adjudicating the case and also the Appellants were not permitted to cross examined these witnesses and thus the impugned orders suffers from the inherent infirmity. Reliance placed on the decision of M/S G-TECH INDUSTRIES VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 957 - PUNJAB & HARYANA HIGH COURT] and SWADESHI POLYTEX LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, MEERUT [2000 (7) TMI 85 - SC ORDER] wherein it is held that it is mandatory on the part of the adjudicating authority to examine the witnesses whose statements have been relied upon and thereafter these witnesses are required to be subjected to cross examination by the Appellant. The case needs to be remitted back to the adjudicating authority so as to follow mandatory conditions prescribed under Section 9D of the Act. Accordingly, the matter remanded to the adjudicating authority by setting aside the impugned order - appeal allowed by way of remand.
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