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TMI Blog2015 (4) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... r of M/s. Super Oils had confirmed the delivery of HSD at the appellant s premises on various occasions. It had been pleaded that the records regarding purchase of raw material and diesel had been recovered from the appellant s premises besides the record regarding payment made to the labour contractors and the details of the tax deducted at source in respect of the payment made to the labour contractors - Some crucial documents had neither been considered by the Commissioner at the stage of the adjudication nor had been considered by the Tribunal, it would be proper to remand this matter to the Commissioner for de-novo adjudication - Decided in favour of assessee. - Appeal No. E/303-305/2006-EX [DB] - Final Order No. 51095-51097/2015 - Dated:- 27-2-2015 - Hon ble Shri Rakesh Kumar, Member (Technical) And Hon ble Shri S.K. Mohanty, Member (Judicial),JJ. For the Appellant : Shri A. P. Mathur, Advocate For the Respondent : Shri Pramod Kumar, JCDR ORDER Per: Rakesh Kumar 1. The officers of Central Excise Meerut-I on receipt of intelligence about duty evasion by M/s. Sikka Paper Mills Limited, Saharanpur Road, Shamli, District Muzaffarnagar (hereinafter ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty on Shri Vinay Bansal, Director of both the units under Rule 26 of the Central Excise Rules, 2002. 2. The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 28/10/2005 by which the above mentioned duty demand of ₹ 68 ,72,654/- was confirmed against M/s. Sikka under proviso to section 11A (1) of Central Excise Act, 1944 along with interest on this duty under section 11AB and besides this, while penalty of equal amount was imposed on M/s. Sikka under section 11AC, penalty of ₹ 5 lakh was imposed on M/s. Shamli under Rule 26 of the Central Excise Rules, 2002 and penalty of Rs. One lakh was imposed on Shri Vinay Bansal under Rule 26 ibid. 3. M/s. Sikka, M/s. Shamli and Shri Vinay Bansal filed appeal before the Tribunal against the above order of the Commissioner. The Tribunal vide final order no. 799-801/2011-EX dated 15/9/2011 dismissed the appeals. Against this order of the Tribunal, the appellant filed appeals before the Hon ble Allahabad High Court. These appeals were filed before the High Court pleading that the Tribunal has not considered the grounds which has been raised in the memorandum of appeal. Hon ble High Court v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order dated 15/9/2011, had dismissed the appeal mainly on the following points: (1). At the time of officer s visit to factory of M/s. Shamli, it was closed and from the condition of the factory, it appeared that it was not working since a long time. (2). There was no power connection in the factory of M/s. Shamli and while the appellant claimed that there were 2 DG Sets, each of 380KVA, only one DG Set was available and in respect of that DG Set also, there was no record of purchase of diesel for running the same. (3). Though M/s. Shamli under their letter dated 18/9/2001 to Assistant Labour Commissioner had intimated regarding closure of their unit from September, 2001 and they had deposited their contribution towards employees provident fund up to February, 2001 only, and this show that their factory was not at the end of February, 2001 and, though the appellant claim that they had been running their factory by hiring contract labour, no evidence in this regard has been produced. 6.1 Sh. A.P. Mathur pleaded that in respect of each of these points specific pleas had been made in the grounds of appeal but the same have not been considered. 6.2 In respect of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants had not co-operated with the adjudicating authority in this regard and from their conduct, it appeared that they were interested only in delaying the proceedings and were not interested in inspection and obtaining copies of the non-relied upon documents sought by them. 8. We have considered the submissions from both the sides and perused the records. Earlier, the appeals filed by the appellant had been dismissed on the following three grounds: (1) At the time of officers visit to the factory of M/s. Sikka and M/s. Shamli on 24/4/2003 only while the factory of M/s. Sikka was functioning and the factory of M/s. Shamli was found closed and from its condition, it appeared that it was not working for a long time. (2) There was no electricity connection in the factory of M/s. Shamli since 3/7/1998 and out of the two DG Sets installed only one was in working condition and in respect of that DG Set also, there was no evidence of purchase of diesel for running the same. (3) the services of staff in the factory of M/s. Shamli had been terminated since May/June, 2001 and their PF contribution had also been made only up to February, 2001 and besides this, M/s. Shamli under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased and receipt of such goods in the factory and the used thereof. (7) Evidence showing returns filed before the sales tax authorities and sales tax paid for the goods sold (8) Evidence relating to licence of the contractor whether valid till 16/8/2013 (9) Different returns filed by the appellant during impugned period before labour Commissioner PF Commissioner and ESI Authority. 10.1. The above documents recovered from the appellant s premises had not relied upon. But in response to the Tribunal s directed dated 21/5/2013, the same have now been supplied to them. 11. We are of the view that since the above documents had neither been considered by the Commissioner at the stage of the adjudication nor had been considered by the Tribunal, it would be proper to remand this matter to the Commissioner for de-novo adjudication after considering the above mentioned non-relied upon documents which have now been made available to the appellant and after considering the appellant s plea on the basis of these documents. It is only after taking into accounts the above documents and considering the appellant s plea based on these documents, that the Commissioner must give h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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