TMI Blog2017 (6) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... there was an attempt to establish that Phospho Gypsum was not used whereas there was no discussion on Fly Ash at all in the whole proceedings - Further, we find that Original Authority in Para 4.22 has held that opinion by Dr. Badri Prasad through letter dated 17/09/2007 was only an assumption which gives an impression that the Original Authority has tried to examine technical opinion without seeking any technical opinion from the competent wing of the Department i.e. CRCL. We are of the opinion that this matter needs to be remanded back to the Original Authority with a direction that the said Original Authority should refer said opinion dated 17/09/2007 given by Dr. Badri Prasad to CRCL and seek expert technical opinion about the correctne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was further condition that the manufacturer maintained proper accounts in such format and in such manner as the Commissioner of Central Excise having jurisdiction may specify in that behalf. A team of Central Excise Officers visited the manufacturing premises of M/s Hilite on 24/07/2003 and conducted investigations above the procurement of raw material and manufacturing process. On the basis of certain invoices of procurement of Fly Ash Phospho Gypsum they came to know that the said invoices indicated that raw material was purchased from one supplier. Therefore, it appeared to Revenue that Fly Ash or Phospho Gypsum was not purchased and used by M/s Hilite in the manufacture of their final product and therefore they were not eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Order-in-Original dated 29/03/2007 and remanded the matter back to the Adjudicating Authority to decide afresh after offering opportunity of personal hearing. In compliance to the said direction Original Authority passed Order-in-Original No.11/Commissioner/Ghaziabad/2009 dated 15/05/2009 which is impugned order. Through the said impugned order dated 15/05/2009 Original Authority confirmed the said demand amounting to ₹ 95,24,695/- against M/s Hilite and imposed equal amount of penalty on M/s Hilite. Further, the proceedings for imposition of penalty on Late Shri A. B. Sharma were dropped. Further penalty of was ₹ 8,00,000/- imposed on Smt. Sudha Sharma under Rule 209A of the Central Excise Rules, 1944 read with Rule 26 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same may be verified by executive check through letter dated 21/06/2006. He, further, stated that on 16/08/2007 the Assistant Commissioner, Central Excise Division V, Ghaziabad observed that the appellant was correctly availing the benefit of the exemption notification and no contravention had been noticed. Further, the said Assistant Commissioner also intimated that the investigation initiated on 16/01/2006 was closed. On requested by the appellant cross examination of only one person was conducted on 06/03/2007. The appellant submitted request to the Original Authority on 07/03/2007 to cross examine the other three persons whose cross examination was denied. The Id. Counsel further has also submitted that they had submitted opinion given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final product. He has further contented that in the entire investigation and adjudication there is no discussion about the use of Fly Ash. He contended that Dr. Badri Prasad, Former Director, Revenue Laboratories Government of India, Ministry of Finance has taken into consideration the contents of Fly Ash on that basis he analyze the content and given his opinion that the final product was containing more than 25% by mass Fly Ash or Phospho Gypsum. He, further, contented that the Original Authority was not expert in the Chemical Analysis and he should not have held that the said opinion dated 17/09/2009 given by Dr. Badri Prasad was only on assumption. The Original Authority should have sought opinion of CRCL on the opinion given by Dr. Bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product to the said Notification 5/1999-CE dated 28/02/1999. we also find that the penalty is imposed on M/s Hilite, Smt. Sudha Sharma, M/s New Delhi Minerals Chemicals M/s JSR International under Rule 209A of the Central Excise Rules, 1944 read with Rule 26 of the Central Excise Rules, 2001/2002 without confiscation of any goods. The said Rules provided that personal penalties are liable to be imposed on such persons who dealt with goods liable for confiscation. Therefore, we set aside the personal penalty imposed on Smt. Sudha Sharma, M/s New Delhi Minerals Chemicals M/s JSR International and allow the appeals filed by Smt. Sudha Sharma, M/s New Delhi Minerals Chemicals M/s JSR International. In respect of appeal filed by M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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