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TMI Blog2003 (8) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... lable in the premises of M/s. Glolite for manufacture of Diesel Generator (DG) Sets. (ii) that M/s. Glolite was floated to wrongly avail the exemption under Notification No. 175/86 on the goods manufactured by M/s. DPK. Therefore, a show cause notice dated 22-11-91 was issued to the assessee and to M/s. Glolite invoking - (i) Provisions of Section 11A(1) by clubbing of clearances of M/s. DPK and M/s. Glolite for the years 1989-90 to 1991-92 (upto May) for determining the benefits under Notification 175/86. (ii) Disallowing the Modvat credit amounting to Rs. 17,16,577.37 p being the credit wrongly taken and availed by M/s. Glolite and (iii) Confiscation of 8 Nos. of D.G. Sets under Seizure belonging to M/s. DPK, demanding the differential Central Excise duty amounting to Rs. 29,53,020.48 from M/s. DPK. (iv) proposing for imposition of penalty on M/s. DPK and M/s. Glolite. (b) Collector, Bangalore, vide his order No. 99/92, dated 24-7-92, confirmed the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 35E(1) of the Central Excises and Salt Act, 1944, have vide Order No. 94-R/96, dated 8-4-96 directed the Commissioner of Central Excise, Bangalore to file an appeal before the Hon'ble Customs Excise and Gold (Control) Appellate Tribunal, Madras, with a prayer to set aside the said order of the Commissioner of Central Excise, Bangalore on the following grounds : (i) The Commissioner appeared to have erred in the withdrawal of reference application filed by department under Rule 35Q(1) of Central Excise Rules, 1944, after concluding that the matter is of simple nature and the delay in disposal may be unwarranted. The remand of the case by CEGAT was purely on question of equity principle, i.e. natural justice and no mandate was expressly or impliedly given by the CEGAT to Commissioner to sit over the judgment on merits of the case decided by a different Commissioner equivalent in authority and judicial powers. (ii) The learned Commissioner appear to have erred in relying on the cross-examination statement dated 17-4-95 of Smt. Narmada Kumari, which was after a delay of ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the evidences produced by the investigation and in placing reliance on retracted statements. (v) The adjudicating authority has not discussed the complete allegations. One of the allegations is that though M/s. Glolite was licenced only on 19-2-90 they seemingly had effected clearances to the tune of 39.16 lakhs in a period of about 40 days of which M/s. Glolite have not produced complete documentary proof such as payment of labour, brought out items, payment for receipt of inputs like generators, engines, etc., (vi) The very fact that M/s. Glolite was de-registered by the Directorate of Industries and Commerce on 14-11-91 based on the Assistant Collector's letter dated 12-8-91 would establish the fact that M/s. Glolite was not in possession of the plant and machinery at the time of offence. The registration was restored on 19-4-93 after M/s. Glolite have installed machineries and equipment required for fabrication and assembling of D.G. Set. Thus SSI registration issued by the Directorate, permission given by the Commissioner to M/s. Glolite to transfer unutilised credit on 15-7-93, and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have led to a different conclusion. Ground taken is found to be vague and is therefore to be rejected. (c) Considering the submissions made in Ground No. (iii), to the effect that if corroborative evidence, available, was not evaluated by the Commissioner; it is found - (i) On Unauthorised shifting of licenced premises The adjudicator has recorded about the effect of the statements of Mr. Sampathraman and Mr. Venkatakrishnan in Para 51 of the order. (ii) On Lack of infrastructural facilities for manufacturing activities This aspect is found to be evaluated, in Para 51 of the order to the effect - " ...The officers also noticed on 9-8-91 at no. 76, J.C. Road which was the factory premises of M/s. Glolite Diesels that there were three workers attending to their work. The officers also verified the stock of raw materials on 9-8-91 and found shortage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts in his order. No other argument how the evaluation/appreciation of the material is not correct are made, then the averments made in this ground are to be held to be 'false on facts'. Such grounds cannot be taken to file appeals. (d) The averments made in the ground No. (iv), wanting, that the Mahazar witness indications in the search made at 4 ADA Complex as regards ownership by the premises to be of Glolite and it not having machinery itself to be relied, in place of the statement of Chairman of DPK, is considered. The perusal of the finding on the manufacture at Glolite, has been found to be arrived at by considering the totality of the material by and before the adjudicator. In any case, Mahazar witness can only indicate the facts as recorded in the Panchnama, they cannot be held to speak for anything more than that. The fact, that on the date of Mahazar, there was no machinery, ipso facto cannot lead to a conclusion that there was no machinery at all times, or and capability of manufacture by Glolite, which could be or was undertaken on any other date in those premises. This ground is therefore required to be rejected. (e) As regards the ground No. 'v', the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e various grounds and evidences on the contrary the Assistant Commissioner has simply relied upon the findings of Commissioner's order-in-original No. 86/95, dated 18-5-95 and dropped the proceedings without giving any justified reasons and findings as to how both appellants unit is not eligible for benefit of exemption under notification No. 175/86 (clubbing of value of clearances) and eligibility of Modvat credit claimed etc. This is irrespective of the fact that the department's appeal against the Commissioner's Order-in-Original No. 86/95 is pending before Hon'ble CEGAT. The Assistant Commissioner should have examined the issue in detail and given his independent findings on the various issues and contentions and so also should have examined the evidences available on record to reach a final conclusion and decision. Therefore in my considered view the order passed by Assistant Commissioner is not a self contained speaking order and hence cannot be sustained. Further, the contention of the respondents that the Commissioner (Appeals) is barred by law to hear this case since he filed an appeal before CEGAT is also not acceptable and tenable since the appeal is filed as per author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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