9911796707
TMI Blog1991 (9) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent herein, cleared dutiable Aluminium Rods and Wires as scrap without payment of Central Excise duty leviable thereon, Anti-Evasion Wing of DRI intercepted the consignments of bare aluminium cable (rope type), bare aluminium wire bundle and aluminium rods consigned to M/s. Laxmi Metal Mart (second respondent herein), Bombay on 22nd and 23rd February, 1983 in the premises of M/s Dharmendra Wire Industries. On demand the second respondent produced the original gate-passes Nos. 170, 451, 452 and 171 all dated 21-1-1993 of the first respondent herein for 20,000 M.Ts of so-called aluminium rod scrap and electric wires and cable scrap along with the relevant challans of the first respondent, way bill, consignment note of Economic Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47,000 under Rule 173-Q of the Central Excise Rules with an option to the owner of the goods to redeem them on payment of a fine of Rs. 50,000. He also imposed a penalty of Rs. 20,000 on the first respondent and warned the second respondent to be careful in future inasmuch as they were the bona fide purchaser of the goods from the first respondent. 2.4 The respondents herein thereafter filed the appeals to the Collector of Central Excise (Appeals), Calcutta who accepted their pleas that the goods were waste and scrap. Hence these appeals by the department. 3. The learned D.R, Shri M.S. Arora, arguing for the appellant-Collector has reiterated the findings of the original adjudicating authority, namely, the Deputy Collector of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been discharged. 3.1 Rebutting the contentions of the learned D.R, Shri K.K. Banerjee, learned Advocate for the first respondent i.e. M/s Aluminium Industries Ltd. has urged that the first respondent is a manufacturer of high tension ACSR cables. These are still cores with the cables and their lengths according to the ISI standard vary from 1.2 KM to 1.5 KM. In view of such an ISI standard, the goods are clearly waste and scrap so far as the 1st respondent is concerned. The goods cannot even be called sub-standard as the department like to call them. Cables are without the steel cores. He has also pointed out that all these goods were cleared as scrap under the physical supervision of the Range Officers. In view of the clearance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f those goods as wires and cables or for the purpose for which they are meant. He submits that it is a well settled position of law that the views of the adjudicating authority cannot take the place of evidence inasmuch as they cannot be cross-examined by the other side. In support of this proposition, he relies on 1986 (25) E.L.T. 145 - Paras 13 to 15 (Koisam Kumar Singh v. State of Manipur). He has also stated that it is well-known that the current through a conductor through its surface passes. Therefore, any defect on the surface such as spills, splits, slags including diemarks, scratches, fittings, blow holes, projections, chipping of aluminium etc. would make the aluminium unfit for manufacturing cables and, therefore, they are reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. The Sessions Judge seems to have converted himself into a witness in order to draw full support to the defence case by what he may have seen. 14. This Court in Pritam Singh Another v. State of Punjab - A.I.R. S.C. 415 observed thus :- A Magistrate is certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his cannot be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same . 15. We are satisfied that in the instant case the learned Sessions Judge ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
