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TMI Blog2018 (6) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... s; they procure the parts and assemble the clocks; test them and clear the clocks thus made in CKD condition to the customer's installation sites and they get them installed at the customer site. It was alleged that the appellants were directly negotiating with the customers regarding the cost, erection and commissioning charges and the sale proceeds are deposited to their marketing division. It was also alleged that the verification of documents like quotations, purchase orders, invoices, gate passes, etc., confirmed that the appellants are manufacturing tower clocks falling under Central Excise Tariff Subheading No.9103 and have not discharged the applicable duty, thereof. Therefore, a show-cause notice C. No.IV/9/6/HMT-TSC/06 Adjn. Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority has also ordered for recovery of interest and imposed a penalty of Rs. 5,000/- on the appellants. 2.2 The appellate authority vide Order-in-Appeal No.26/2007-CE dated 31.7.2007 has confirmed the views of the original authority. The appellants being aggrieved by the above have filed the present appeal No. E/777/2007-DB. 3. The appellants contended that the original adjudicating authority got investigation conducted into the matter after the personal hearing has taken place and they have not been informed of the findings and no opportunity to represent thereof on the findings was given to them; the learned Commissioner (A) has erred in holding that there has been no violation of principles of natural justice in not supplying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (A) has erred in holding that the tower clocks can be dismantled and moved from one place to another. The appellant's contention was that such tower clocks are fixed to the ground and cannot be removed without cannibalizing. The entire equipment is a clock of specific dimension which is assembled in conjunction with civil works and electronic connections. The visible portion of the clock is embedded in the civil structure. Removal of such clocks cannot be done without breaking the structure into which it is embedded. Such a process of removal will obviously result in damage to the frame dial, etc., of the clock. The appellants have relied upon the following cases: Oriental Carbon & Chemicals vs. CCE: 2017 (357) ELT 248 Commission vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned appellate authority has also not considered the non-supply of copy of the report as no violation of principles of natural justice. We find that in the entire scheme of matters, confirmation by the original adjudicating authority is based on the said investigation report. The investigation report being very critical to the conclusions of the adjudicating authority, an opportunity should have been given to the appellants and any denial of such opportunity is a clear violation of principles of natural justice. We find that it was held by Allahabad Tribunal of CESTAT in the case of Oriental Carbon & Chemicals (supra) in para 15 that the evidence collected by the learned Commissioner beyond the back of the appellant cannot be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Aska Equipments Pvt. Ltd. vs. Commissioner of Central Excise: 2006 (202) ELT 795 (Tri.-Mum.) wherein it was held that demand raised on the assessee-traders involved in providing specifications relating to quality, etc., of lighting steel tower structures required to be manufactured by job workers was misdirected and therefore, unsustainable. We also find that Hon'ble Supreme Court has upheld the findings of the Hon'ble Tribunal in the case of Commissioner vs. Aska Equipment Pvt. Ltd.: 2010 (254) ELT A37 (SC). 6. In view of the above findings, we hold that the appeal succeeds on the issue of merits as well as on principles of natural justice. Accordingly, the appeal is allowed. ( Order was pronounced in Open Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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