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TMI Blog2005 (5) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... intelligence, searched the appellants factory and office on 22-7-l997 and statements of the appellants proprietor and manager as also various officials of M/s. Voltas Ltd. were recorded which culminated in issue of Show Cause Notice dated 26/28-9-1998 demanding duty of Rs. 32,69,001/- from the appellants on the ground that the goods cleared in the guise of repaired and reconditioned coils and condensers under invoices of M/s. Neha Refrigeration were goods manufactured by the appellants in their factory. The other appellant is the Manager of M/s. Sapna Engineering. 2. On adjudication, the ld. Commissioner vide the impugned order confirmed the demand against the appellants and imposed penalty on both the appellants and dropped the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) E.L.T. 88 (Tri) - Ogesh Industries v. CC (b) 2003 (151) E.L.T. 68 (Tri) - K.R. Balachandran v. CCE, Coimbatore. (c) 2003 (161) E.L.T. 1136 (T) - Poly Resins v. CCE, Chennai. (d) Failure to issue such notice to one of them was held to be bad in law and appeals were allowed only on this point. (iii) Statements of various officials of M/s. Voltas Ltd. confirmed dispatch of defective coils to M/s. Neha Refrigeration and their receipt after they are duly repaired, from M/s. Neha Refrigeration. The only evidence to support the allegation in the Notice was retracted statements of the proprietor and Manager of the appellants as well as that of Shri Manoj Sharma. However, these statements were immediately retracted, and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for manufacture of condensers or evaporator coils or other parts of air conditioning and refrigerating appliances. That the goods on which duty had been demanded were cleared in the documents of M/s. Neha Refrigeration. However, no Show Cause Notice has been issued to M/s. Neha Refrigeration asking them to show cause as to why M/s. Neha Refrigeration should not be considered as a dummy unit of the appellants. The Ld. Advocate for the appellants have referred to the judgments cited above in the case of Ogesh Industries, K.R. Balachandran and Poly Resins in support of his contention that the Show Cause Notice is vitiated and bad in law as no Show Cause Notice was issued to M/s. Neha Refrigeration and therefore M/s. Neha Refrigeration did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Jayant S. Dandekar, Foreman of M/s. Voltas Ltd., para 4.9, extract from the statement of Shri K.R. Kallianpur, Materials Manager, M/s. Voltas Ltd., para 4.4 to 4.15 of the SCN. This factual position was also reiterated and got confirmed during the cross-examination of Shri G.R. Naik, Inventory Clerk of M/s. Voltas Ltd. The ld. Commissioner completely ignored all these depositions in his findings though specifically relied and referred to by the noticees in their written submission. The order is arrived without considering the submissions and is not based on facts. (iv) The ld. Commissioner, has relied on the statements by holding that the statements are considered voluntary and are admissible as evidence unless the persons prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g demand and leveling allegations against the appellants. (vi) The comparison of costing of the repaired coil with that of new coils, as contained in para 4.15 of Annexure-A to the SCN which the appellants explained that the comparison is unrealistic as Excise duty payable on coil is not taken into account and the cost of the new coil would work out to Rs. 3000/- whereas the repaired coil would cost only Rs. 2070/- and this is not controverted in the impugned order which records that the apparent imprudence was merely a cause of suspicion which was not a ground in itself and further even if the cause of suspicion is proved incorrect that would not scrap the allegations when it found that when the basic premise of the notice itself is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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