TMI Blog2013 (11) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were required to reduce its size since the RTO rules did not permit transportation of logs longer than 40 feet. If only for cutting length of the logs, which were in excess of 40 feet, sawing operations were carried out and after some cleaning and scaring was done, timber logs of smaller pieces were sold, we do not see how respondents can be stated to have breached any of the conditions of the exemption notification dated 14.9.2007 - Following decision in the case of M/s Agarwala Timbers Pvt. Ltd. [2010 (9) TMI 950 - CESTAT AHMEDABAD] - Decided against Revenue. - Appeal No.C/12114-12249/13 - Order No.A/11413-11548/2013 - Dated:- 30-10-2013 - MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri Hardik Modh, Adv. For the Respondent : Shri K.J. Kinariwala, A.R. JUDGEMENT Per: M.V. Ravindran 1. All these applications are filed by the Revenue for condonation of delay of 25 to 28 days in filing the appeals before the Tribunal. Since the delay is marginal and has been properly justified, we condone the delay and direct the Registry to take on record the Stay Petitions and the appeals. 2. Ld.Counsel submits that on an identical issue, in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Through letter dated 23.10.2012, the appellant-department, informed that in various CA-2 filed by the department regarding the manipulation of invoices were drawn from the ongoing investigation by Directorate General of Central Excise Intelligence [DGCEI] and in many cases the show cause notices have already been issued wherein the manipulation of invoices have been explicitly alleged, these allegations leveled are based on the parallel invoices collected by DGCEI during their investigation; that the work of co-relating the list of cases wherein appeal has been preferred with the show cause notices issued by DGCEI, was under process; that as soon as all the documents were found, the same would be submitted. This office wrote a letter dt.09.11.2012 to the appellant that this office cannot wait ad infinitum as long period had elapsed; that it was also presumed that in appropriate cases, the competent authority must have issued notices to protect govt. revenue; that besides, the preliminary scrutiny of appeals filed by your office reveals that there is nothing on record to substantiate the presumption of manipulation of invoices at this point of time and thus proving of the facts is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the clinching evidences to get the cases remanded, or has not been able to cull out the evidences to present them cases-wise before me. Whatever the situation at hand, I find that merely the fact that an investigating authority has issued show cause notices by itself cannot become a ground or basis for holding that the respondents have manipulated invoices, even if there might be truths in the said stand. Hence, I am not inclined to accept the last reference dt.22.02.2013, and now, I am left with no alternative but to proceed to examine the matter on the basis of the appeal memoranda (CA-2s) and other records before me. 6.3 After going through the impugned orders, I find that the adjudicating authority had sanctioned the refund claims after certain scrutiny of the records placed before him. The adjudicating authority in each and every case, in his findings, has recorded that he had examined the relevant sale invoices which are endorsed with the remark "No Credit of the Additional duty levied under sub section (5) of the Section 3 of the Custom Tariff Act, 1975 shall be admissible." The adjudicating authority had also worked out the exact quantity of the goods sold and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In such cases, the burden is entirely on the appellant-department to prove their stand, which they have not done. In fact, it is a settled law that presumption vitiates proceedings unless reinforced with evidence as also held in Commissioner of Customs (Imports), Chennai Vs Flemingo (DFS) Pvt. Ltd., reported at 2010 (251) E.L.T. 348 (Mad.). Thus, at this stage, unless concrete evidences of manipulation are placed on record before me, I am unable to hold this stand sufficient to set aside the impugned orders and remand the case, though fact remains that I have not given any verdict on merit of the cases. 7.1 Before parting, I emphasize that in the present order, I am not giving any finding whether any manipulation of documents was done or not, and thus I leave it open for the appellant-department to apply any alternate remedy, which is available under Section 28 of Customs Act, 1962 for recovery of erroneous refund even at a later stage, if the Appellant-Department does get hold of evidences. Indeed, setting aside of the original orders of refund in an appellate proceeding would not be a pre-condition for recovery measures under Section 28 of Customs Act, 1962. In the case of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ico Lab, Hon'ble Gujarat High Court was dealing with the issue of remand only and after considering the issue in detail, Hon'ble High Court had come to the conclusion that the Commissioner has powers to remand. In view of the fact that there are contradictory decisions of the Tribunal and other than the decision of Hon'ble High Court of Punjab Haryana there is no other decision holding a contrary view to that of Hon'ble Gujarat High Court in Medico Lab, I conclude that as far as Gujarat State is concerned, the decision of Hon'ble Gujarat High Court is binding and accordingly Commissioner has power to remand the matter and therefore no interference is called for. Besides, I also rely upon the case of CCE Meerut Vs.Prem Steels Pvt.Ltd. reported at 2012-TIOL-1317-CESTAT-DEL and the case of Hawkins Cookers Ltd. Vs. CCE Allahabad -2012 (284) ELT 677 (Tri-Del) which have in turn relied upon the case of CCE Ahmedabad Vs Medico Labs -2004 (173) ELT 117 (Guj.) wherein it has been held that Commissioner (Appeals) continue to have power of remand even after the amendment of Section 35(A) of the Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11.05.2001. This case of Pram Steels P. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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