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TMI Blog2010 (2) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been decided ex parte and that several submissions made by the appellants in their appeal memoranda were not considered. 3.2 Those submissions, as enumerated in the applications, are as follows: (a) That the crucibles of 3 MT and 4 MT capacity were spare crucibles. (b) That even the CBEC Circular No. 325/41/97-Ex dated 25-7-1997 states that capacity of the furnace is to be determined without considering the capacity of the spare crucibles. (c) That the appellant does not have sufficient power load to operate the furnace of 3 MT and 4 MT capacity simultaneously and this fact is accepted by Deptt. In para 9 of show cause notice. (d) That a larger crucible does not enhance production capacity as the melt rate achieved and consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieved by using the larger crucibles is erroneous. (m) That out of the seven witnesses, on whose statements reliance has been placed in the show cause notice under reference, two have retracted from theft statements during the course of their cross- examination. The remaining five were not presented for cross- examination. (n) That no reliance can be placed on the statement of witnesses who have not been produced for cross-examination. (o) That no reliance can be placed on statements of witnesses from which the witnesses have retracted. (p) That there has been violation of principles of natural justice. (q) That extended period of limitation is not invokable in the present case. (r) That penalty is not imposable on the applicant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered merely on the ground that each of them have not been specifically mentioned in the order. This is factually incorrect as they have indeed, been considered and the findings have also been given on all those points. It is neither feasible nor necessary to reproduce each and every submission of appellant in the appeal memoranda verbatim. 5.3 The main finding by the original authorities against the appellants was that they were using additional and higher capacity crucibles and produced goods in excess and accordingly the capacity of annual production was required to be re-determined. The Tribunal's order has given detailed finding on this core issue. For example, the submissions that crucibles of 3 MT and 4 MT capacity were spare cruci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son who has maintained the log sheet is factually not correct. It is clear from the records that Shri Vinay Kumar Singh who has maintained log sheets has been cross-examined on 13-2-02. Subsequently, as noted in the order of the Commissioner, the personal hearing had been granted on 16-9-03 and it is apparent that no specific request for cross- examination of any other person who had maintained log sheets had been reiterated. Further, the order of the Commissioner (Appeals) clearly indicates that cross-examination was offered in respect of other witnesses and one witness could not be produced as he was dead and some had left the services of the applicant's company and the addresses were not provided and in respect of other persons, summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the final judgment of the jurisdictional High Court. Therefore, the said grounds also do not justify, recall of our order dated 1-7-09. 8. The decision of the Hon'ble High Court of Gujarat in the case of Baroda Rayon Corporation Ltd. quashing the order of the Tribunal has been given with specific finding that there existed an error appaient on record. It is also on appreciation of the fact that the Tribunal had stated that the applicant had not offered any explanation for non-appearance on the date fixed for hearing of the appeals when the points could have been urged before the Bench. The facts of the - present case are entirely different. 9. The decision of the Hon'ble Supreme Court in the case of J.K. Synthetics Ltd. has been rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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