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TMI Blog2015 (4) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... 997-98. Therefore, without tangible evidence or without being obtaining expert s opinion on the issue the said report determining the production capacity cannot be rejected by the adjudicating authority. Moreover, machine log sheets were specifically directed by the Tribunal to examine in depth but the adjudicating authority rejected those machine log sheets on the ground that the same are manipulated and afterthought. In these circumstances, I hold that the adjudicating authority has not considered any defence taken by the appellant in remand proceedings. But pass the order by confirming the demand against the appellants and imposition of penalty in mechanical manner. - Impugne order is set aside - Decided in favour of assessee. - Appeal No.E/E/449-52/2007-EX(SM) With E/Misc/54736-54739/2014 - Final Order No. 50620-50623/2015 - Dated:- 16-3-2015 - Hon bleMr.Ashok Jindal, Member (Judicial),J. For the Appellant : Shri C. Harishankar, Advocate For the Respondent : Shri R. K. Mishra, A.R. ORDER Per Ashok Jindal : The appellants are in appeals against the impugned order wherein the Commissioner has confirmed the demand of duty of ₹ 25,74,737/- again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e log sheets and other contentions after providing reasonable opportunity to the appellant to the present their in defence. In the remand proceedings, the permission to cross examine Shri Jagdish Verma, Shri Satish Sharma and Shri Gopal Singh Rawat was sought by the appellant whose statements have been relied upon by the Revenue in the show cause notice but instead of giving cross examination, the adjudicating authority confirmed the demand on the ground that no cross examination was allowed by this Tribunal while remanding the matter and cross examination is not absolute right. It also held that there was corroborative statement by Shri Joginder Kawatra and also confirmed the allegations. It was held that report of the Institute of Paper Technology, Roorkee is not acceptable and machine log sheets could be easily manipulated. Aggrieved with the said order, the appellants are before me. 4. Shri C.Harishankar, ld.Counsel appearing for the appellants submits that rejection of cross examination by the adjudicating authority and after relying on the statements of Shri Jagdish Verma, Shri Satish Sharma and Shri Gopal Singh Rawat is ex facie untenable in law and the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures were totalled, the resultant clearance would exceed 100% of the capacity utilization of the appellant, which was not correct. He submits that a number of points were raised before the Commissioner, Central Excise which were not attended to by him nor were commented upon. He, therefore, prays that the appeals may be remanded so that the matters may be examined by the authorities in the light of the various contentions raised as also on examination of the documents available on record. 8. Thereafter this Tribunal has concluded order in para 6 and remanding the matter back to the adjudicating authority for de novo adjudication for proper appreciation of the facts, para 6 is reproduced below:- On careful consideration of the submissions made, we note that a number of points were raised by the appellants before the learned Commissioner in reply to the show cause notice as also at the time of hearing. We note that certain documents are very material for a decision in the appeals like machine, log sheets and the capacity of the paper mills, which were not considered adequately and examined in dept. We consider it a fit case for remand. In the circumstances, we remand the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice by the adjudicating authority as held by Hon ble Delhi High Court in the case of J.K. Cigarettes (supra) wherein Hon ble High Court held that in so far as general principles are concerned, there could be no denying that any statement is used against the assesse, an opportunity of cross examination of the persons who made those statements ought to have given to the assesse. Admittedly in this case, the statements of Shri Jagdish Verma, Shri Satish Sharma and Shri Gopal Singh Rawat have been relied on and cross examination was not granted by the adjudicating authority to the appellants. The same is held gross violation of principles of natural justice. 11. I further observe that the issue of clandestine removal of the goods came before this Tribunal in the case of Arya Fibres Pvt.Ltd. (supra) wherein this Tribunal has laid down certain fundamental criteria have to be established by the Revenue for confirming the charge of clandestine removal which are as follows: (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted presumption (ii) Evidence in support thereof should be of: (a) raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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