TMI Blog2022 (12) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ents evidencing the payment transaction against the supply of goods was also not considered by the adjudicating authority on the flimsy ground that the same were not signed. In this fact, it is not necessary that all the documents which are allowed to be relied upon for defense of the noticee must be made available during the investigation of the case. Once, its authenticity is proved then the said documents must be considered for a fair adjudication. In the present case, the adjudicating authority without ensuring the authenticity of the documents rejected the same, therefore, same is in gross violation of principles of natural justice. Payment transaction against the supplies made by M/s Nayara Energy Limited to M/s Essar Shipping Limited - statements of payment particulars submitted by the appellant was rejected only on the ground that the said document was not signed - HELD THAT:- It is surprising that it is not the statement alone which evidence the payment transaction but the same has to be verified from the books of accounts of the appellant. The adjudicating authority before rejecting such evidence must have verified the books of accounts to check the correctness o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pheld the allegations made in the show cause notice and consequently, confirmed the demand of duty, interest and penalties. Being aggrieved by the said order-in-original, the appellants filed the present appeals. 2. Shri Vishal Agarwal learned counsel along with Ms. Dimple Gohil, Advocate appearing on behalf of the appellant submits that the adjudicating authority confirmed the allegations without taking cognizance of the documentary evidence produced by M/s Nayara Energy Limited / Essar Shipping Limited as also without appreciating that there was no evidence to establish that the actual user condition had been violated as no investigation had been conducted with respect to the use to which the said furnace oil had allegedly been put to. The adjudicating authority has also not taken cognizance of the submission to the effect that the violation of actual user condition, if any, could be a ground for raising a demand against Essar Shipping Limited and not against Nayara Energy Limited who had fulfilled all the conditions precedent to the exemption being available at the time of clearance of the goods. Shri Vishal Agarwal submits that the appellant submitted various documents befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 580 MT of furnace oil carried by barge Hope Island -II. iv. Invoice of ZEE Shipping dated 23.03.2007 in respect of freight charges for transportation of 558 MT furnace oil for MV Mahavir Prasad from Bedi to Hazira and Hazira jetty to Hazira Anchorage. v. Email from Zee Shipping services to Port Officer, GMB; Coast Guard; Indian Navy informing them that barge Hope Island -II would call upon Hazira Anchorage between 16/17th March 2007 for supply of bunker to MV Mahavir Prasad. vi. Oil record book of MV Mahavir Prasad which records that on 20.03.2007, 550MT of furnace oil has been loaded. vii. The Statement of Facts signed by the Master of MV Mahavir Prasad recording that furnace oil at the time of arrival was 666 MT while at the time of departure was 1224 MT. C. Furnace Oil has been supplied to MV Chandi Prasad under cover of Shipping Bill C-08 dated 21.03.2007. i. Arrival Report filed with Surat Customs in respect of barge Hope Island-II dated 05.03.2007 which records that the same had arrived with ships stores (Furnace Oil)-560 MT. ii. Bunker Delivery Note signed by the Chief Engineer of MV Chandi Prasad noting that 557.290 MT of furnace oil had been delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, which is clearly a violation of principles of natural justice. He alternatively submits that the appellant M/s Nayara Energy Limited have cleared the goods on the basis of proper SFIS Scrips which is not under dispute, therefore, if at all there is any violation of actual user condition, the demand at the most should have been raised against the recipient of the goods i.e. M/s Essar Shipping Limited. On this ground also the demand is not sustainable. In support of his submission, he placed reliance on the following judgments: Hindustan Petroleum Corporation Ltd. 2013 (298) ELT 294 (Tri. Mum.) CCE vs Mumbai-II vs Hindustan Petroleum Corporation 2018 (362) ELT 33 (Bom) Essar Oil Limited 2010 TIOL 1647 CESTAT AHM Commissioner of Central Excise vs Kirloskar Chillers Pvt. Ltd. 2018 (360) ELT 190 (Tri. Mum.) Voltamp Transformers Ltd. 2012 (276) ELT 238 (Tri. Amd.) Commissioner of Central Excise vs Voltamp Transformers Ltd. 2013 (296) ELT A16 (Guj.) Universal Power Transformer Pvt. Ltd. 2010 (256) ELT 244 (Tri. Bang.) CCE Chandigarh vs Aarti Steels 2000 (126) ELT 1106 (Tribunal) A V Jain vs Union of India 1987 (29) ELT 872 (Bom.) Rajendra Jagannath Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority. The adjudicating authority cannot reject those documentary evidence without verifying the authenticity of the said documents. If the adjudicating authority has any doubt on such documents produced at the time of adjudication, he is free to ensure the authenticity of the said documents. Once, its authenticity is proved then the said documents must be considered for a fair adjudication. In the present case, the adjudicating authority without ensuring the authenticity of the documents rejected the same, therefore, same is in gross violation of principles of natural justice. 8. As regard the payment transaction against the supplies made by M/s Nayara Energy Limited to M/s Essar Shipping Limited, statements of payment particulars submitted by the appellant was rejected only on the ground that the said document was not signed. It is surprising that it is not the statement alone which evidence the payment transaction but the same has to be verified from the books of accounts of the appellant. The adjudicating authority before rejecting such evidence must have verified the books of accounts to check the correctness of the payment transaction between supplier M/s Nayara En ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
