TMI Blog2021 (8) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge is the order at second round of litigation where the adjudicating authority below - It is observed that though the said Final Order has been complied with by the adjudicating authority, as 13 out of 40 witnesses have been cross-examined. But it is perused that the outcome of the cross-examination has not at all been considered while passing the impugned order. It is clearly apparent from the testimony of the witnesses cross-examined that their earlier statements were got recorded forcibly under pressure with use of coercion. It has been the deposed by most of the witnesses during their corss-examination that nickel was very-much available in the factory of M/s. JVIPL at the time of the visit by the Department, but was still not shown in Panchnama by the Investigating Officers due to reasons best known to the Department. The witnesses have specifically stated that M/s. JVIPL otherwise used to make copper-nickel alloys. There is no effort apparent on the part of the Department to ascertain the exact temperature range required of a furnace to melt nickel. None of the expert had suggested that the fire furnace of M/s. JVIPL was actually not capable of attaining the melting po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portionate penalties not only on M/s. JVIPL and all concerned in day to day functioning of the said company but also on the raw-material supplier of M/s. JVIPL including the present appellant were imposed. The said proposal was initially confirmed vide Order No.15/2009 dated 02.11.2009. The said order was challenged before this Tribunal earlier. Vide Final Order No. 52510-52522/2015 dated 06.08.2015 the matter was remanded back for de-novo adjudication, after affording the opportunity of cross-examination of the persons whose statements have been relied upon by the adjudicating authority. It is in compliance with the said directions that the order under challenge has been announced after taking into consideration the outcome of the cross-examination of the persons as were requested during the adjudication before him. Still being aggrieved the present appeal has been filed. 3. I have heard Mr. Arjun Malik, learned Counsel for the appellant and Shri Pradeep Gupta, learned D.R. for the Department. 4. It is submitted on behalf of the appellant that the only allegation against the appellant is arising only out of the statement of Mr. Ramesh Kumar Chawla, the Director of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of ₹ 4,37,55,733/- alongwith the interest and proportionate penalties upon as many as 19 noticees including the manufacturer as well as the raw-material suppliers. But simultaneously I observe that impugned appeal is filed by only one co-noticee among said 19 co-noticees, that too with respect to the amount of penalty confirmed against him i.e. ₹ 10,000/-. This observation is sufficient for me to hold that the present appeal is challenging the imposition of penalty of much less amount than the pecuniary limit of the Single Bench of this Tribunal. Therefore, the appeal can definitely be heard by this Single Member Bench. Accordingly, I proceed to adjudicate on merits. 6.1 From the order under challenge, it is observed that the imposition of penalty against the appellant is solely based upon the statement of appellant s Director Mr. Ramesh Chawla where he has stated about his knowledge for M/s. JVIP to have not been equipped to use the nickel, for want of the proper furnace which is required to melt nickel. This statement has been presumed to be an admission for the knowledge with the appellant about the fact that the nickel sold by him to M/s.JVIPL was not meant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to ascertain the exact temperature range required of a furnace to melt nickel. None of the expert had suggested that the fire furnace of M/s. JVIPL was actually not capable of attaining the melting point of the nickel. Despite this absence, the Commissioner has placed utmost reliance on the said statement. His findings are accordingly, held to be unreasonable and unjustifiable and nothing more than presumptive. 9. Further, the lacuna as apparent in the adjudication is that the Commissioner has ignored the evidence of the transporters. It is perused that there is the statement of M/s. Jain Agencies and Metal Linkers about acknowledging for transporting the nickel from the appellants to M/s. JVIPL. The Commissioner is opined to has formed a wrong presumption from the statement of Mr. Chawla about his knowledge for no furnace located either with M/s. JVIPL or in entire Delhi as such for melting down the nickel that nickel has not been used by M/s. JVIPL in manufacture of their final product and that it was not supplied by appellant to M/s. JVIPL. There is no effort on part of the Department for producing any evidence in support of said presumption. The findings of Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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