TMI Blog1996 (11) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... o jurisdiction to issue show cause notice. He drew our attention to two miscellaneous applications filed by the appellants, wherein they have taken this ground for the first time before the Tribunal in this regard. He in support of his plea relied upon the decision of the Special Bench in the case of Malhoomiyan Yakub Miyan v. Collector of Central Excise reported in 1990 (49) E.L.T. 464 (Tribunal). The learned Counsel for the appellants also contended before us that the adjudicating authority did not take into consideration the electricity consumption for arriving at the production in the factory of the appellants. He contended that for one year he had taken into consideration the quantum of consumption of electricity while during another y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have heard the learned Counsel for the appellants with respect to the miscellaneous applications filed by the appellants in regard to jurisdiction of the Assistant Director, Anti Evasion to issue show cause notice. We find that this plea was taken before the Tribunal for the first time. Since the demand should be determined on the basis of the show cause notice issued, the appellants should be allowed to take this plea before the Tribunal. Since the question of jurisdiction goes to the root of the matter, we allow the plea of the appellants in this regard. This plea shall be considered by the adjudicating authority. We find that the Special Bench of the Tribunal in the case reported in 1990 (49) E.L.T. 464 has clearly held that Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Further, there is also nothing on record to show that the appellants have waived their right of cross-examination of those persons on whose statements reliance has been placed by the adjudicating authority. There is also absolutely no evidence brought on record that it was because of the mistake on the part of the appellants that the witnesses could not be cross-examined. On the contrary there is absolutely no evidence brought on record, that the adjudicating authority had kept the witnesses present during the personal hearing for cross-examination of the persons from whom statements have been obtained. The evidence on record goes to show that the appellants were not given the opportunity of cross-examination of the witnesses. Thus, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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