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TMI Blog2015 (4) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000, 3/2001-CE dated 01.03.2001, 6/2002-CE dated 01.03.2002 which prescribed nil rate of duty for the goods of chapter 68 in which not less than 25% by weight of fly ash or phosphogypsum or both have been used, subject to the condition specified in this notification. The condition specified for this exemption is that the manufacturer maintains proper account in the form as prescribed by the Jurisdictional Commissioner of Central Excise regarding receipt and use of fly ash/phosphogypsum in the manufacture of the goods falling under chapter 68 of the tariff and also file a monthly return in the format as prescribed by the Commissioner with the Jurisdictional Deputy / Assistant Commissioner. There is no dispute that the appellant were maintaining the record regarding receipt and consumption of the fly ash as prescribed by the Commissioner and receipt of each consignment of fly ash was being intimated to the Jurisdictional Central Excise Officer in D-3 form sent upto the year 2002. 1.2 On 07.10.2004 the factory of the appellant company was visited by the Central Excise Officers and they conducted inquiry to ascertain whether the appellant are using at least 25% fly ash in the ACC pip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whose proprietor is Sh. Darpan Jain. Statements of Shri Darpan Jain were recorded on 07.03.2005 and 24.05.2005 wherein he stated that only those parties who had obtained the permission from Kota Thermal Power Plant to lift the fly ash, were allowed to lift the fly ash from there under the gate passes issued by the KTPS, that consignments of fly ash was being lifted by M/s Kumawat Industries, M/s Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries, Kota, that the fly ash lifted against the gate passes issued to the above three parties were being unloaded at their premises and thereafter he used to prepare GRs showing transportation of the fly ash to the appellant company, on insistence of Sh. Manish Kala, Director of the appellant company, but the fly ash covered under those GRs was not actually being transported. 1.4. Inquiry was also made with Sh. Chandmal Kumawat of M/s Kumawat Industries and Sh. Kailash Sharma of M/s Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries, Kota and both these persons in their statements denied having supplied any fly ash to the appellant company. 1.5 It is in view of the above investigation that a Show Cause Notice dated 4.4.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the format prescribed by the Commissioner and beside this they also filed a monthly return Annexure-C, regarding the receipt and use of fly ash, along with monthly RT-12 return, that upto 2002 they were also filing the intimation regarding receipt of the consignment of fly ash in D-3 format, that the file containing D-3 intimations given from time to time and also the records being maintained and the returns being files have been resumed by the investigating officers, that in April, 2003 the appellants unit had been visited by the Jurisdictional Central Excise Officers, specifically to check the use of fly ash and nothing adverse was noticed by the inspecting team, that the appellant were procuring the consignments of fly ash from KTPS through three parties, namely, M/s Kumawat Industries, M/s Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries, Kota, and the consignments of fly ash were being transported through M/s Kaka Roadlines, that the Departments case against the appellant alleging that the appellant were not using fly ash to the extent of at least 25% is based only on: (a) Statement of fly ash suppliers Sh. Chandmal Kumawat of M/s Kumawat Industries and Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Del.) while interpreting the provisions of section 138B of the Statements Act, 1962 which in perimeteria with the provisions of Section 9D of the Central Excise Act, 1944 has held that the statements of person recorded by the Gazette officer of a Department cannot be used against an assessee without giving to the assessee the opportunity of cross examining the deponent and in this regard, Honble High Court has relied upon its earlier judgments in the case of J&K Ciggarttes Ltd. vs Collector reported in 2009 (242) ELT 189 (Del.), with also the Apex Courts Judgment in the case of Laxman Exports Ltd vs Collector reorpted in 2000 (122) ELT 641 SC, that when the appellant as per the condition of the notification were maintaining the record of the receipt and use of the fly ash and were also filing monthly return in this regard along with RT-12 return and when during inspection in April 2003 by the preventive team of the Divisional Office for checking the use of fly ash in the manufacture of ACC Pipes, no irregularity had been found, merely on the basis of the statements of the suppliers and transporter of fly ash suppliers and of some certain employees and of the Director, the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the consumption of fly ash has been shown on this basis, Shri Manish Kala and Sh. Girish Panth in their statements have stated that the factory was working in one shift only. He also emphasized that the appellant do not have the licence to lift fly ash from KTPS and the license in this regard had only been issued to M/s Kumawat Industries, M/s Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries, Kota. He pleaded that Sh. Chandmal Kumawat, proprietor of M/s Kumawat Industries and Sh. Kailash Sharma of M/s Shubham fly ash and M/s Nirmala fly ash have denied having supplied any fly ash to the appellant company. He pleaded that though the transportation of fly ash from the premises of M/s Kumawat Industries, M/s Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries, Kota to the appellant company is being shown through Kaka Roadlines, Sh. Darpan Jain, Proprietor of M/s Kaka Roadlines in his statement has stated that he has issued only bogus GRs on insistence of Sh. Manish Kala showing transportation of fly ash from the premises of M/s Kumawat Industries, M/s Shubham Fly Ash Products and M/s Nirmala Fly Ash Industries, Kota to the Appellants factory. He emphasized th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. The appellants counsel however, disputes this allegation of the Department and according to him as per the documents available with him, these columns were not being left blank. It is also his contention that even if the column no. 10to 13 are left blank, it is not material as column no. 7 clearly shows the quantity of fly ash utilized. 7. However, the case of the Department against the assessee is based mainly on:- (a) Statement dated 7.10.2004 of Sh. Laxman Meghwal, mixture master and statement of Sh. Girish Panth, Sales Executive of the appellant company wherein they have stated that fly ash was being used only to the extent of 2 to 3% and most of the time no fly ash was being used and the fly ash received was being used for lavelling the premises at F-20/21, MIA, Udaipur; (b) Statement of Sh. Manish Kala, Director of the Appellant company wherein he has stated that the above mentioned statements of Sh. Laxman Meghwal and Sh. Girish Panth. (c) The statement of Sh. Chandmal Kumawat, proprietor of M/s Kumawat Industries and statement of Sh. Kailash Sharma, Manager of M/s Shubham and M/s Nirmala wherein they have stated that they had not supplied any fly ash received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee an opportunity of cross examining the deponent. It is also seen that in terms of section 9D(2) of Central Excise Act, 1944, the provision of sub section(I) shall, so far as may be, apply in relation to any proceeding under this act other than proceeding before the court as they apply in relation to proceedings before the court. Under section 9D(1) in course of prosecution proceedings, for offences under the Central Excise Act, 1944, the statement of a person can be used against an assessee only when the person who has made the statement is examined as a witness in that case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. The only circumstances in which the statement of a witness can be accepted as relevant for proving the charge against him without cross examination are those enumerated in clause (a) of section 9D(1), that is, when the person who made the statement is dead or cannot be found, or is incapable of acting evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay, or absences w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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