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TMI Blog2016 (10) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... 987 was said to be recovered. However, no statement of any person was recorded on the same. Form A contained the details of imports made by the appellant for the manufacture of their final products. 2.1 The details mentioned in FORM A were compared with the details of monthly returns filed with Excise Department and sales returns filed with the Sales Tax Department for relevant period and the differential quantity of imported material reflected in Form A over and above the quantity of raw material shown in excise records was alleged to be used for clandestine manufacture of goods removed without payment of duty. 2.2 SCN dated 22/12/1988 was issued demanding duty on various counts and on account of impugned demand. The assessee contested the SCN mainly on the basis that the details mentioned in FORM A were not the actual figures of import and consumption, which were prepared for getting higher import quota. 2.3 The Commissioner vide Order-in-Original dated 24/04/1991 confirmed all demands except the impugned demand and the reserved his order on said demand, which is the subject matter of dispute in the present appeal. For ready reference, relevant Para of order of Original Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport of tin-sheets on the assumption that the total sheets had been consumed in manufacture of metal containers. This leads to doubt as to whether the quantity of inputs shown to have been consumed, Tin-sheets had been utilized in the manufacture of metal was actually imported and whether the total imported containers alone. This called for investigations which I find, had not been undertaken as no evidence has been brought on record, that the above said quantity of tin-sheets had actually been utilized in manufacture of tin containers. Till this is done, it will not be proper to create any demand against party on the above said quantity indicated in Form-A application. 2.4 However, without adhering to the aforesaid directions, the Commissioner vide addendum dated 24/04/1992 i.e. exactly after one year from the date of earlier Order-in-Original, confirmed impugned demand and imposed penalty as well. 3. The appellant filed appeals against both the orders passed by the Original Authority. The Tribunal, vide order dated 23/02/1997 disposed all the appeals filed against both the orders. The Appeal No.2586-88/1991 were disposed by the Tribunal but in the Appeal No.4472/1991, the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of natural justice and remanded the matter back to the Collector of Central Excise for de novo adjudicating and the Collector to pass order after affording an opportunity of personal hearing in accordance with law to the appellant. Consequentially the Appeal No. E/4472/92-NB is allowed by way of remand. 4. The Commissioner vide order dated 04/11/1997 again confirmed the demand without complying with the order of Tribunal. 5. The appellant challenged said order before the Tribunal which vide Final Order dated 01/07/1999 disposed the appeal itself on the date of hearing of Stay Application by observing that the Commissioner did not follow the directions in earlier order of Tribunal. 6. In remand proceedings, the Commissioner said to have made efforts to get information from DGFT, but since no information could be received, the Commission again confirmed the demand under his order dated 31/07/2002. 7. The appellant again challenged said order before the Tribunal which vide order dated 16/08/2007 observed that the Commissioner simply reproduced the order of his predecessor and that the directions of Tribunal given were not complied with. Hence the matter was again remanded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General of Foreign Trade. This fact also strengthens the case for the department. 9. Aforesaid Order No. 14/Commr./GZB/2009 dated 20/05/2009 passed by the Commissioner is under challenge before us. 10. Shri Rajesh Chhibber, counsel for the appellant at the outset submitted that in first round of adjudication when Commissioner adjudicated the show cause notice dated 22/12/2008 vide Order-in-Original No.56/Collector/1990-91 dated 24/04/1991, the show cause notice stood disposed and no further order could be passed even by way of addendum by reversing his own findings given while passing order dated 24/04/1991. The second order by way of addendum dated 16/07/1992 was not maintainable at all and consequently all subsequent proceedings became illegal and void ab initio. 10.1 The counsel also submitted that the entire demand was based on FORM A said to be recovered during investigation by the DGCEI, whereas in subsequent proceedings, the Additional Commissioner (Adj.), Central Excise, Ghaziabad vide letter dated 20/10/2010 informed the Income Tax Authorities that there was no mention of Form A in the Panchnama dated 23/06/2008 which showed the casual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period was 9025MT only which alone was also sufficient to set aside the demand in the instant case. When DGFT specifically ordered that the appellant imported 9025 quantity, the case made out by the department for import of 20699MT (Page No.160) is clearly contrary to otherwise established fact. Hence when concerned Authority i.e. DGFT governing the import did not find any fault on the part of appellant in imports made by it, the entire case of department merely based on a Form A showing some inflated details of imports is not sustainable submitted to the DGFT is not maintainable at all. 10.5 The Learned Counsel also submitted that on the basis of investigation so made by the Central Excise, Income Tax Department also initiated similar proceedings. Ultimately vide order dated 14/11/2011, the Commissioner of Income Tax (Appeals) dropped the addition made by the Income Tax Department on the basis of information available in Form A only, details of which were provided to the Income Tax Department by the Central Excise Department. He emphasized over the fact that a perusal of Page 7 (Para-2) of said order dated 14/11/2011 had made reference to communication dated 20/12/2010 recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , how and when the final product was manufactured, whether the appellant had the capacity to manufacture the same, when and to whom the final products were sold and how the so called unaccounted cash was received for clandestine manufacture. It was otherwise illogical that the goods imported through proper channel were used for manufacture of clandestine manufacture of final product. The counsel submitted that it is a settled legal position that the charge of clandestine removal cannot be made without having corroborative evidences. Therefore also the impugned order is not sustainable. 11. Heard the Learned A.R. for the Department who has supported the case of department as given in the impugned order. 12. We have perused the records and have considered the submissions made from both the sides. In the instant case, when the Adjudicating Authority while deciding the case vide OIO dated 24/04/1991 had held that the demand in dispute called for investigation, the Lower Authority was bound to drop the demand on the said basis itself. Under no provision of law, the Lower Authority could decide the show cause notice in parts. Therefore, entire adjudication proceedings after passing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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