TMI Blog2021 (12) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and law. Appellant has contended that Copies of relied upon documents seized on 03.05.2017 have not been provided despite oral and written requests made by Appellant from the date of seizure for such documents. Appellant has also submitted copies of their letters dated 06.09.2018, 10.04.2019, 02.02.2019 and 25.10.2019 in the Company s Appeal at page Nos. 79 to 83. There is no denial of this fact of non supply of relied upon documents by the Revenue. There was no clandestine removal of goods against the seized Gate Passes, which are also not provided to Appellants to clarify this aspect further. Charge of clandestine removal without payment of duty is not proved. Duty demand in Show Cause Notice dated 18.12.2019 and confirmed by Order-in-Original dated 04.12.2020 is also not sustainable. The duty demand of ₹ 8,89,640/-based on 61 Gate Passes (GP), in absence of positive corroborative evidences, is also not sustainable under the facts and circumstances of this particular case against the Appellants. Shortage of finished Decorative Laminates - HELD THAT:- In absence of any such corroborative clinching, positive evidences of excess procurement and use of required Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated Sheets Paper Based Electrical Insulators falling under CETH No. 48 85 of Central Excise Tariff Act, 1985. Appellant s Factory was searched on 03.05.2017 by officers of Central Excise (Preventive), Ahmedabad-II. During the search, stock of finished products as reflected in Finished Product Register (RG-I, maintained in Computer software Tally by Appellant), was found short by 18,456.33 SQMT as compared to stock reflected in RG-I. Shortage of finished Decorative Laminates of 18456.33 SQMT was valued at ₹ 14,87,950/-, which was allegedly cleared without invoices and without payment of duty [@12.5%]. Duty on shortage of goods worked out was ₹ 1,85,994/-. Further, officers also found 61 Gate Passes (GP) and alleged clearance of the manufactured finished goods valued at ₹ 71,17,127/-, involving total excise duty of ₹ 8,89,640/-. The duty liability of total ₹ 10,75,634/- (₹ 1,85,994/- + ₹ 8,89,640/-), in dispute, was reversed from CENVAT Credit Account vide the debit Entry No. JV/026 during Panchnama on 03.05.2017. Show Cause Notice dated 18-12-2019 demanded total Central Excise duty of ₹ 10,75,634/-and Order-in-Original dated 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties have not carried out fact findings correctly. Hence, this Tribunal being final fact finding authority may decide the case finally in this Hon ble Tribunal. 5. Shri G. Kirupanandan, Learned Superintendent (Authorised Representative), appearing on behalf of Revenue reiterates findings of the authority below and has submitted that the case of Revenue is proved as the shortage of finished goods was found on 03.05.2017 and clandestine clearance of manufactured goods against Gate Passes seized has also been accepted in statement recorded on 03.05.2017. The Commissioner (Appeals) has remanded the matter to original adjudicating authority, but not rejected. Hence, submissions made by Appellants are untenable and accordingly he submits that their Appeals may be rejected. 6. Heard both sides and perused the records. I find that Appellant s Factory was searched on 03.05.2017.Duty @ 12.5 % on shortage of finished Decorative Laminates of 18456.33 SQMT valued at ₹ 14,87,950/- was worked out to be ₹ 1,85,994/- and another duty demand is ₹ 8,89,640/-, alleging clandestine removal of finished goods, based on 61 Gate Passes (GP) seized from factory on 03-05-2017. Total d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Appellants have also submitted that this Tribunal as the final fact finding authority may finally decide the Appeals and resolve the dispute as per law. Thus, I find force in submissions of Appellants that both the Authorities could have finally decided the case appropriately as the fact finding authorities on ascertaining the facts and circumstances of the case and appreciation of the evidences on critical analysis of records correctly in order to come to rational inference and conclusion whether Appellants had indulged in the alleged clandestine manufacture and/or clandestine removal of the goods. Accordingly, since the case has reached in this Tribunal, it would also be appropriate to finally decide the case in this Tribunal as the final fact finding authority in the facts and law. 6.2 I find that Appellant has contended that Copies of relied upon documents seized on 03.05.2017 have not been provided despite oral and written requests made by Appellant from the date of seizure for such documents. Appellant has also submitted copies of their letters dated 06.09.2018, 10.04.2019, 02.02.2019 and 25.10.2019 in the Company s Appeal at page Nos. 79 to 83. There is no denial of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards, the shortage of finished Decorative Laminates of 18456.33 SQMT involving duty demand of ₹ 1,85,994/-, Appellant has submitted that there was no such shortage of finished goods as shown in Panchnama dated 03.05.2017; that no verification of physical stock was carried out during Panchnama; that on 31.03.2017, they had taken closing stock, which had taken 4 days with help of 20 persons; that during Panchnama on 03.05.2017, only few officers were present and they had not carried out any physical verification of all goods lying in factory on 03.05.2017. I find that Notarised Affidavit by Director Shri Ravindra Tantia is also submitted in Company s Appeal. Appellant has submitted that for manufacture of 18456.33 SQMT finished goods, they would require quantity of raw materials as shown in Appeal and investigation has not adduced any evidence of excess procurement and use of Raw materials, packing materials. I find that Appellant has also submitted that levy of duty is on actual manufacture of goods and no manufacture of goods can be proved without proving excess procurement and use of excess Raw materials, packing materials, electricity consumption, men power etc. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H) (H) Flevel International vs. CCE - 2016 (332) E.L.T. 416 (Del.) I find force in this legal contention. Original Adjudicating authority has neither examined nor allowed cross-examination of witnesses whose statements are recorded in investigation and relied upon in this case. I find that these are the only evidence relied upon to confirm the demands in facts of this case. It is settled position in law including the decision of the Hon ble Supreme Court in case of Andaman Timber Industries - 2015 (324) E.L.T. 641 (S.C.),that when cross examination of the witnesses is not allowed u/s 9D of Central Excise Act 1944, then, those statements should not be relied upon for fastening the duty/tax liabilities. Hence, I find that cross examination of the witness was mandatory to arrive at correct fact finding in the interest of justice in the facts of this case. There is no other material placed on record by Revenue to justify excise duty demands. Therefore, the duty demand is also not sustainable on this legal ground as well. 7. In view of the above, disputed excise duty demands of total Rs, 10,75,634/- (₹ 1,85,994/- + ₹ 8,89,640/-), deserves to be set aside and I do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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