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TMI Blog2019 (4) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as the Subordinate Authorities are justified in holding that the product in relation to the assessment which has been made, falls within the description "Fly Ash Bricks" in terms of the relevant entry making it exigible to levy of duty? (ii) Whether on the facts and circumstances of the case, is the impugned demand barred by limitation in terms of Section 11A of the Central Excise Act, 1944? (iii) Whether the Authority below erred in law and due procedure in accordance with law in relying on the views of the chemical examiner without affording the appellant an opportunity of cross-examining? (iv) Has the Department arrived at the conclusion against the Assessee regarding the nature of the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of sponge iron; hence its combustion generates ash particles which are carried off with the waste gases and collected in Electro Static Precipitator and it is called fly ash. Therefore, since the appellants were also selling bricks by name "Fly Ash Bricks", which could not have been done unless it contains fly ash, the liability to pay on clearance of fly ash bricks squarely lies on the appellants. It is also recorded that the appellants have themselves mentioned fly ash bricks in their accounts and sale bills. The Commissioner further found that the noticee vide its letter dated 13-5-2008 informed that ESP dust bricks i.e. fly ash bricks manufactured by them contain 48.2% of fly ash by weight and that in its commercial invoice descript ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than 48% of fly ash by weight. 7. The issue as to whether the appellants are entitled to concessional duty rate or exemption under Notification No. 5/2009-C.E. has been dealt with by the Tribunal in its order dated 9-2-2017 by substituting para 4 of its previous order dated 29-9-2016 by leaving it on the jurisdictional authority to verify the accounts maintained by the appellants and on fulfilment of such conditions for exemption under the subject notification, exemption available shall be extended to the appellants. 8. The appellants have admittedly neither maintained any record nor filed any return even though they were selling goods as fly ash bricks, therefore, extended period of limitation in terms of Section 11A of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% ash by weight. For the same reason, the fourth substantial question of law is also to be answered against the appellants because admission is the best evidence. Right to cross-examine the chemical examiner would be available to the appellants only when the order is based on such report and not when it is based on the appellants' own admission. At this stage, it would be appropriate to refer to the appellants' reply to the show cause notice (Annexure-A/4) stating that the report of chemical examiner is not on record, therefore, copy of the same may be provided to them. This itself makes it apparent that the department has not relied on the chemical examiner's report, therefore, there was no question of affording the appellants an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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