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2021 (8) TMI 938 - AT - Central ExciseCENVAT Credit - inputs not received in the factory premises - purchase of inputs from the suppliers on high seas sales basis - cross-examination of persons whose statements were taken - additional corroborative evidences present - challenge to penalty of much less amount by only 1 co-noticee among 19 co-noticees - maintainability of appeal - HELD THAT:- The impugned appeal is filed by only one co-noticee among said 19 co-noticees, that too with respect to the amount of penalty confirmed against him i.e. ₹ 10,000/-. This observation is sufficient to hold that the present appeal is challenging the imposition of penalty of much less amount than the pecuniary limit of the Single Bench of this Tribunal. Therefore, the appeal can definitely be heard by this Single Member Bench. Earlier the demand against the appellant was confirmed based on the statements recorded by the investigating officers at the time of investigation itself. None of those witnesses were allowed to be cross-examined by the appellant despite his request. The present order under challenge is the order at second round of litigation where the adjudicating authority below - It is observed that though the said Final Order has been complied with by the adjudicating authority, as 13 out of 40 witnesses have been cross-examined. But it is perused that the outcome of the cross-examination has not at all been considered while passing the impugned order. It is clearly apparent from the testimony of the witnesses cross-examined that their earlier statements were got recorded forcibly under pressure with use of coercion. It has been the deposed by most of the witnesses during their corss-examination that nickel was very-much available in the factory of M/s. JVIPL at the time of the visit by the Department, but was still not shown in Panchnama by the Investigating Officers due to reasons best known to the Department. The witnesses have specifically stated that M/s. JVIPL otherwise used to make copper-nickel alloys. There is no effort apparent on the part of the Department to ascertain the exact temperature range required of a furnace to melt nickel. None of the expert had suggested that the fire furnace of M/s. JVIPL was actually not capable of attaining the melting point of the nickel. Despite this absence, the Commissioner has placed utmost reliance on the said statement. His findings are accordingly, held to be unreasonable and unjustifiable and nothing more than presumptive - Apparently there is no physical inspection by the investigating team about the process of manufacture being adopted by M/s.JVIPL. In the absence thereof, the mere fact that M/s. JVIPL had no such furnace as is required for melting nickel purchased from the appellant, that too without any evidence verifying the same, is not sufficient to fasten the liability upon the appellant to the extent of imposition of penalty alleging his involvement in the alleged clandestine production by M/s. JVIPl. The findings of adjudicating authority below, being highly presumptive are absolutely insufficient for imposition of penalty upon the raw-material supplier of such manufacturer i.e. the appellant - Appeal allowed - decided in favor of appellant.
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