TMI Blog2014 (6) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ny documentary evidence to establish that the procured GP sheets were cleared by the appellant in the market. Further, the Revenue has also miserably failed to show as to from where the appellants have procured the HR/CR sheets. Admittedly, without the use of the raw materials, may it be GP sheets or HR/CR sheets, their final product cannot be manufactured. In the absence of any evidence produced by the Revenue, the burden of countering and rebutting the evidence does not get shifted to the assessee. The number of search conducted on the google is not indicative of a process being commercially viable or not. On one hand the adjudicating authority has observed that de-galvanisation exists and on the other hand he is rejecting the appellants stand that there is no technical literature to show that de-galvanisation actually exists. He has also observed that the Show Cause Notice has referred to and relied upon circumstantial evidences to show that it is not possible to use GP sheets in the manufacture of tractor component. The Revenue establishing a fact that in the normal course GP sheets are not used for manufacture of OE parts, cannot lead to inevitable conclusion that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of final product and the credit availed was being used for discharge of duty liability on their final product. 4. It is seen that the Revenue made certain investigations from the appellants customers as also from the dealers. As per the enquiries made from the manufacturers-customers, it was deposed by them that they were getting various tractor parts manufactured from the appellant for further use in the manufacture of the motor vehicles at their end; that for this purpose drawing and specifications of the raw materials are supplied by them to various vendors; that the main raw material for manufacture of the motor vehicle parts is CR/HR sheets; that the tractor part supplied by the vendor are usually manufactured out of CRC/HRC sheets. They also further deposed that they had not received any component/parts manufactured out of GP sheets. 5. The appellants factory was visited by the officer on 1.11.1999 and in the presence of Shri Subhash Sikka, Managing partner of the unit, various checks and verifications were undertaken. In his statement dated 1.11.1999, Shri Subhash Sikka deposed that they were purchasing the raw materials from local market/traders and the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue. There is no statement of any buyer of the GP sheets recorded by the Revenue so as to corroborate the allegations. He also observed that there is hardly any difference in the HR/CR sheets and the GP sheets. He also observed that the appellants have shown him the samples of silencers which are made of GP sheets and as such the plea of the department that the GP sheets are not being used by the appellant is not correct. The appellate authority also held the demand to be barred by limitation having been raised on 4.4.2000, for the period Jan. 1995 to December 1998. He observed that the entire credit was being availed by the appellant by reflecting the same in the statutory returns; that all the invoices were being produced before the Range officer, who was regularly defacing the same and; that RT-12 returns were being regularly filed by the appellant; that the said RT-12 returns were being finally assessed. As such there was no question of suppression of fact and the extended period was not invokable, in terms of the apex Court s decision in the case of Collector Vs. Ganges Soap Works (P) Ltd. - 2003 (154) ELT A234. 8. The said order of Commissioner (Appeals) was appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minary investigation. Be that as it may, the fact remains that the assessee did not have the opportunity to go through and confront the material which was collected by the Department in the preliminary investigation conducted by it and in the absence thereof, the assessee could not possibly defend its case. Ultimately on the basis of the material so collected, the assessee was to be subjected to the levy of duty. Keeping these facts into consideration, we are of the view that the ends of justice in the present case will be met, in case the impugned orders passed by the authorities are set aside and the matter is remanded back to the Adjudicating Authority for consideration afresh in accordance with law after affording opportunity of hearing to the assessee and confronting the material collected against it. 10. During de novo adjudication the original adjudicating authority again confirmed the demand which stands upheld by the Commissioner (Appeals). Hence the present appeals. 11. I have heard Ms. Tuhiana, Ld. Advocate appearing for the appellants and Shri R.K. Mishra Ld. DR appearing for the Revenue. 12. The impugned orders stands passed by the lower authorities in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, he has observed that if the department is able to adduce sufficient evidence, which gives rise to a reasonable inference of clandestine clearance against the party, then the onus to rebut the evidence shifts on the party. However, the above principle may be true but I really fail to understand that which initial evidence the Revenue has produced to establish that the appellant has cleared the GP sheets in the market. There is virtually no evidence produced by the Revenue inasmuch as no buyer of the GP sheets stands identified nor is there any documentary evidence to establish that the procured GP sheets were cleared by the appellant in the market. Further, the Revenue has also miserably failed to show as to from where the appellants have procured the HR/CR sheets. Admittedly, without the use of the raw materials, may it be GP sheets or HR/CR sheets, their final product cannot be manufactured. In the absence of any evidence produced by the Revenue, the burden of countering and rebutting the evidence does not get shifted to the assessee. 15. In any case and in any way of the matter, I find that the appellants have tried to explain as to how the GP sheets can be used by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the appellants have not used the said GP sheets in the manufacture of their final product. This is specifically so as the Revenue has failed to produce any evidence on record to establish that the said GP sheets stand cleared by the appellant in the open market and also to establish that the appellants have procured the HR/CR sheets from any other source. 17. It is also seen that the appellants have produced the parts manufactured by them from GP sheets before the earlier Commissioner (Appeals). Though no reliance can be placed on the findings of the appellate authority in his earlier order, nevertheless, I find that the said facts remains unrebutted. 18. The appellants have also taken a categorical stand that there was no benefit for them the produce HR/CR sheets from grey market and obtain bills of GP sheets since both were chargeable to 16% rate of duty. The said plea does not stand accepted on the ground that the GP sheets are costlier than HR/CR sheets and the same are used in the industries like manufacture of utensils, coolers, buckets, air conditioners which are in unorganised sector and required no Modvat documents. Accordingly it stands observed that from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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