TMI Blog2013 (10) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... t the suppliers end, at the transporters end and at dharmakanta end - It had come out that the fly ash was being lifted by the transporter who was initially accepted the transportation but subsequently denied it - However, the evidentiary value of these statements can be appreciated only at the time of final disposal of the appeal. the statement of Shri Mahmood Ahmad and Shri V.K. Agrawal, Assistant Engineers of M/s Kota Thermal Power were vital piece of evidence indicating that they maintained all the records in their factory showing the parties lifting the fly ash and the appellants name does not appear in the records - The appellants stand that such lifting was being done from outside the pond where fly ash dumped, it was done by the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and Shri I. Baig and Shri S. Jain, ld. D.Rs for Revenue. 3. As per facts on record M/s A. Infrastructure Ltd. is engaged in the manufacture of asbestos cement pressure pipes used for conveying drinking water falling under Chapter 68. Notification No. 6/2002-CE dated 1.3.2002 exempts products of Chapter 68, if they contain fly ash not less than 25% by weight. As per the appellant, they were using the fly ash more than 25% in the said pipes manufactured by them and as such they were entitled to the benefit of the notification in question. Proper records showing receipt of fly ash from the factory of M/s Kota Super Thermal Power Station and M/s Suratgarh Thermal Power Station were being maintained by them. Further the notification requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge and information, M/s A. Infrastructure did not lift any fly ash from them. The said plea of the Revenue is rebutted by the ld. Advocate on the ground that such fly ash generated at the power plant is also dumped by the said power plant in the outside pond. They have entered into a contract with the transporters for lifting the said fly ash and transport the same to their factory. As such, he submits that the statements of two engineers are factually correct inasmuch as it was the transporters who were collecting the fly ash from their end and not the appellant directly. 6. It is further seen that the Revenue recorded the statement of three transporters, according to whom the fly ash was never transported by them from either Kota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also conducted at the dharamkanta end and the owner of the same denied that the weighment slips produced for the period November 2005 to March 2006 belonged to his dharamkanta. Ld. DR submits that actually, the weighment slips retrieved from the computer maintained at dharmakanta revealed that the same belonged to some other third parties, whose statements were also recorded and who have accepted the said weighment slips. To counter the above stand of the Revenue, the contention of the ld. Advocate is that the Revenue itself has accepted the weighment slips for the period April 2005 to October 2005 and as such their stand that the records of the dharmakanta were fabricated does not appeal. He also submits that even for the period Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kms. Away. He submits that fly ash is a costless item and the truck owners/transporters are charging the appellant only for the transportation cost. He submits that when two sources of acquisition of fly ash are at different locations and the difference of distance between them is around 500 kms., the cost of transportation should also vary, whereas the fact is that the appellant have entered into contract with the transporters to supply the fly ash from two different sources, at the same cost. He also submits that the investigation conducted by the Revenue revealed that payment to transporters was being made through cheque and the said amount was being refunded to the appellant in cash, after the commission was deducted. He also submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age that there seems to ample evidence against the appellant indicating that the procurement of fly ash was not actually being done by them and only the records showing receipt of the same were being maintained. In such a scenario even the aspect of plea of limitation may not be, prima facie, available to the appellant, inasmuch as the entire case of Revenue is that records were being maintained only to show the receipt of consumption of fly ash, which has turned out to be false. 13. As we have already discussed that the appellant does not have a prima facie case, we deem it fit to put them to some terms of deposit. The appellants have not pleaded any financial hardships and have not placed on record any evidence to show their poor financ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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