TMI Blog2010 (2) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri R.K. Verma, JDR, for the Respondent. [Order per: M. Veeraiyan, Member (T) (Oral)]. - These two applications are for restoration of appeals dismissed by Final Order No. 458-459/09 dated 1-7-09 (2009 (248) E.LT. 303 (T)]. 2. Heard both sides. 3.1 The primary grounds on which the restoration is sought for, are that the appeals have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um production is not achieved by the applicant. (k) That the annual capacity of production of the applicant was deter mined by jurisdictional Central Excise officers after visiting the unit of the applicant. The spare crucibles were available even at that time but no objection was raised by the officers. (I) That the finding that more production can be 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 witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have carefully considered the submissions from both sides. At the outset, we note that the request for adjournment by letter dated 30-6-09 filed on behalf of the appellants has been considered and was not acceded to for the reasons recorded in para 2 of the order sought to be recalled. 5.2 It is claimed by the appellants many of their submissions have not been considered 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 origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry records. It has taken note of the fact that the company has maintained log sheets and also the existence of higher capacity crucibles and recorded the finding that figures as per log sheets correspond to the production as per higher capacity crucibies. 5.5 The ground taken in the applications that the applicant was not given any opportunity to cross-examine any person 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants while seeking adjournments on 9-4-09 and 30-6-09 referred to the interim order passed in the case of Vigneshwar Steels Ltd. The fact that the said order also related to the decision of the Larger Bench in the case of Surana Metals Steels (I) Ltd. was not specifically brought to our notice. However, the Tribunal in its order dated 1-7-09 has taken specific note of 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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