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2019 (3) TMI 303 - HC - Central ExciseProcess amounting to manufacture or not - applicability of Section 11D of the Central Excise Act, 1944 read with Rule 4 of the Central Excise Rules, 2002 - the CESTAT has proceeded on the basis that the assessee in the present case had not collected any duty over and above the duty liable to be paid - Held that:- The CESTAT has failed to even advert to, much less consider the statement of Shri Subbaraj as reflected in the order in original dated 31st August, 2007. In para 5.1.1., it is recorded that Shri Subbaraj, the representative of the assessee, on being asked stated that the assessee had recovered the Central Excise duty from their customers on the additional quantity generated because of blending of ethanol which was sold by the assessee at the same rates as that of the motor spirit ( MS). It is further recorded that Shri Subbaraj stated that since there was no advise from the head office, the central excise duty so collected from their customers was not paid to the credit of the Central Government. No doubt, as contended by Mr. Srivastava, Shri Subbaraj's statement has to be read in its entirety including the portions reflected in paras 5.1.2., 5.1.3., 5.1.4 as well as other material on record - In the present case, all that is observed is that there is no consideration of whatsoever of the statement made by Shri Subbaraj whether in isolation or in the entirety. Non consideration of relevant material on record is a ground for interference. This is not a case of re-appreciation or revaluation of material on record but this is a case where the material which both the parties regard as material, has not been adverted to, much less considered by the CESTAT. From the impugned order, it is apparent that there is no consideration of even the assessee's contention that the assessee was not at all liable for payment of any excise duty since the assessee is not at all involved in any manufacturing. Mr. Srivastava is right that the other evidence adduced even by the assessee is not considered in the impugned order. Since several aspects have also not been considered by the CESTAT or in any case the impugned order does not reflect that such aspects have been considered, thus matter requires reconsideration. Appeal is allowed by way of remand.
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