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2015 (11) TMI 1248 - CESTAT AHMEDABAD

2015 (11) TMI 1248 - CESTAT AHMEDABAD - TMI - Denial of SSI exemption benefit under Notifications No.16/97-CE, dt.01.04.97, 8/98-CE, dt.02.06.1998, 8/99-CE, dt.28.02.1999 and 8/2000-CE, dt.01.03.2000 - Held that:- Central Excise officers visited the Appellant s factory on 22.08.2000 and resumed the files containing invoices, Note Books and also recorded the statements of the employees and Directors of the Appellant Company. The Central Excise officers also visited several transport companies and .....

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ed the statements of the employees of the transport companies. The Appellants requested the Adjudicating authority to supply the copy of documents recovered from the premises of transporters as referred in the annexures to the Show Cause Notice and the cross examination of the employees of transporters, which was rejected. The Commissioner (Appeals), by earlier order dt.14.12.2005, remanded the matter to the Adjudicating authority for denovo Adjudication order.

Despite the order of t .....

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clandestine removal of goods. So, the demand of duty alongwith interest and imposition of penalty cannot be sustained. - impugned order is set aside - Decided in favour of assessee. - Appeal No. E/730,731/2008-SM - Order No. A/11684-11685/2015 - Dated:- 18-11-2015 - Hon ble Mr. P.K. Das, Member ( Judicial ) For the Appellant : Shri Alok Barthwal, Shri R.K. Jain - Advocates For the Respondent: Shri Jitendra Nair, Authorised Representative ORDER Per P. K. Das The relevant facts of the case, in br .....

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factory premises. They have seized the files containing sale invoices for the year 1998-99 to 2000-01 and two notebooks for July 2000 and August 2000 respectively from the premises of the Appellant Company. It has also recorded the statements of the employees and the Director of the Appellant Company. As a follow-up action, the Central Excise officers visited the offices of the several transporters and recorded the statements of the employees of the transporters and also recovered the lorry rece .....

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iled appeals before Commissioner (Appeals), C.E. & C, Daman. By the Order-in-Appeal No.KU/411 to 414/DAMAN/2005, dt.13/14.12.2005, the Commissioner (Appeals) set aside the Adjudication order and remanded the case to the Adjudicating authority with direction to supply the relied upon documents and to give them opportunity of cross examination of the witnesses. In denovo Adjudication, the Adjudicating authority again confirmed the demand of duty of ₹ 13,81,649.00 alongwith interest and i .....

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e employees of transporter. In this context, the learned Advocate drew the attention of the Bench to the Annexure B to I of the Show Cause Notice. He submits that the Appellant requested to provide a copy of relied upon documents and cross examination of the employees of transporters. It is submitted that the notebooks were seized from the premises of the Appellant and no demand was raised on the basis of the said notebooks. It is further submitted that despite of the Order (Appeal) dt.14.12.200 .....

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d the clandestine removal of the goods. He further submits that none of the employees of the transporter had not given the details of the clandestine removal of the goods, insofar as the person involved of the Appellant Company. The letters dt.30.04.2001, 02.07.2001, 08.07.2001 of the Appellant Company would show that the statements were not voluntary. Further, by letter dt.13.09.2001, the Appellant requested to refund the deposit made during the investigation. The learned Advocate submitted the .....

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any had seen the statement and therefore, there is no requirement of cross examination of the employees of the transport company. He submits that the Adjudicating authority had given detailed findings of clandestine removal of the goods in each year beyond the SSI exemption limit of ₹ 50 lakhs. 5. After hearing both the sides and on perusal of the records, I find that the Central Excise officers visited the Appellant s factory on 22.08.2000 and resumed the files containing invoices, Note B .....

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mmissioner of Central Excise, Div. Daman, informed the Appellants as under:- Sub: Refund claim of ₹ 75,000.00 filed by M/s Mukesh Appliances Pvt.Ltd., Dabhel-Daman Reg. Please refer to your application dt.13.09.2001 on the above cited subject. In this connection, it is to inform you that the matter is between you and HPIU-IV, Surat-II, therefore, it is requested to do contact with the Office of the Deputy Commissioner (Prev.), Central Excise & Customs, Surat-II and obtaining clarificat .....

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B to I of the Show Cause Notice, that the demand was raised on the basis of the L.Rs. recovered from the premises of the various transport companies. The Central Excise officers recorded the statements of the employees of the transport companies. The statements are mostly similarly worded. By the statement dt.12.09.2000, Shri Shabbir S. Shaikh, Manager of M/s Surat Ahmedabad Transport Pvt. Ltd, GIDC, Vapi, stated that he was shown their dispatch register, which was seized from their office in c .....

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them on 12.10.2000, showing the details of Mixers, Grinders cleared by M/s Mukesh Appliances Pvt.Ltd, Daman to different consignees through their transports. It has also stated that the details like date, L/R No., name of the consignee, and packages mentioned in their booking registers are true and correct. 7. Shri Bam Bhola Babu Ram Tiwari, Manager of M/s Sachdeva Roadways Pvt. Ltd, in his statement dt.28.11.2000, stated that he was shown the statement prepared by the Central Excise officers o .....

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iances in their booking register. 8. On perusal of the statements, it appears that the Central Excise officers prepared the statements of the clearance of the goods on the basis of dispatch registers and the L.Rs. recovered from the office of Transport Companies and recorded the statements of the employees of the transport companies. The Appellants requested the Adjudicating authority to supply the copy of documents recovered from the premises of transporters as referred in the annexures to the .....

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r records recovered by the investigating officers. On perusal of the appellants defence reply dt.11.02.2002 filed to the show cause notice, it reveals that a demand for supply of relied upon documents and cross-examination of transporters whose statements have been recorded was asked for. However, these requests have not been considered by the Adjudicating authority before adjudicating the case. Further, it is also noticed that the Adjudicating authority, viz. Joint Commissioner, has not heard t .....

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ty to cross-examine the persons whose statements have been relied upon in the case. The appellants are also hereby directed to co-operate with the Adjudicating authority in early adjudication of the case in fresh adjudication. This action is supported by the Hon'ble Gujarat High Court s decision in the case of Medico Labs Vs CCE, Ahmedabad 2004 (173) ELT 117. 9. I find that the Adjudicating authority, in denovo adjudication, had not given any findings on supply of the relied upon documents a .....

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ppellant, and also they could not have been granted opportunity of cross examination. The Commissioner (Appeals) observed that the officers prepared the details of clearance on the basis of records (L.R. book, booking register, dispatch register), produced by the transporter. Even though the Commissioner (Appeals) had not provided the copy of the documents and the cross examination of the employees of the transporter. The Commissioner (Appeals) proceeded on the basis of the statement of Shri Ram .....

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factory premises of the Appellant Company. Thus, the findings of the Commissioner (Appeals) are not sustainable. 10. I find that the documents were recovered from the transporter s premises and the statements of the transporters were recorded in 2000. The Commissioner (Appeals), by order dt.14.12.2005, directed the Adjudicating authority to provide the documents which was not complied with. On the other hand, by the impugned order, the Commissioner (Appeals) proceeded on the basis of the stateme .....

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out supplying the copy of the documents recovered from the premises of the third party, the basis of the impugned order is a serious lapse, which makes the order nullity, inasmuch as it amounted to violation of principles of natural justice. It is noted that the Appellants are adversely affected by the statements of the employees of the Transport Companies and the documents recovered from the transport companies and they are not allowed to cross examination of the witnesses and to examine the do .....

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rved that the Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the Appellants themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guesswork as to for what purposes the Appellant wanted to cross-examine those dealers and what extraction the Appellant wanted from them. The relevant portion of the decision of Hon'ble Supreme Court in the case of .....

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s/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No.2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the dire .....

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ther aspect of the case is that the learned Authorised Representative submitted that the Director of the Appellant Company was shown and accepted the statements of the employees of the transport companies. The learned Advocate countered the submission of learned Authorised Representative and drew the attention of the Bench to the correspondences to substantiate that the Appellant had not accepted the clandestine removal of the goods and filed refund claim of deposit made at the instance of the o .....

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