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TMI Blog2016 (9) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.50 per Kg. of material received and that ingot manufacturing started in the last few days. Shri Prabir Hazra, Proprietor of M/s. Super Galvanizing Works in his statement dt. 31.08.2000 stated that he is getting Zinc Ingots manufactured out of Zinc Dross supplied from M/s. Sylvan Chemicals and also produced two challans dt. 22.07.2000 and 05.08.2000. However it is observed from copies of these challans that none of these were signed by Sri Prabir Hazra but have been signed by one Shri P.Samanta. Cross-examination of Shri Prabir Hazra was asked by appellant and the same was allowed by the Adjudicating Authority. Efforts were made by the Adjudicating Authority to call Shri Prabir Hazra but he did not turn up. A finding is given by the Adjudicating Authority that Shri Rohit Gupta, on behalf of the appellant during personal hearing on 06.01.2006, submitted that appellant would not make further request to call the cross examinees. However, it is observed from the record of personal hearing in Revenue s paper book that there is no concessions to the effect that cross-examination of witnesses will not be insisted. Rather the plea of Shri Rohit Gupta was to call Shri Hazra and Shri B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment with respect to 20.440 MT of seized Zinc Ingots is thus remanded to the Adjudicating Authority by setting aside order portion (i) of the OIO for denovo consideration after affording an opportunity of personal hearing to the appellant. - Appeal partly allowed and partly remanded - Appeal No. E/268/2006 - Order No. FO/A/76091/2016 - Dated:- 28-9-2016 - Shri H.K.Thakur, Member (Technical) And Shri P.K.Choudhary, Member (Judicial) Shri B.N.Chattopadhyay, Consultant and Shri Arijit Chakraborty, Advocate for the Appellant Shri K.Choudhari, Suptd.(AR) for the Respondent ORDER Per Shri H. K. Thakur 1. This appeal has been filed by the appellant against Order-In-Original No. 72/Commissioner/CE/Kol-II/Adjn/2005-2006 dated 08.02.2006 passed by the Commissioner of Central Excise, Kolkata-II as the Adjudicating Authority. Under this OIO dated 08.02.2006 Adjudicating Authority confiscated 20.44 M.Ts of Zinc Ingots seized on 2.08.2000 and allowed redemption. Duty demand of ₹ 53,70,918/- alongwith interest, has also been confirmed against the appellant in addition to imposition of equivalent penalty as per the provisions of Section 11 AC of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has sent Zinc Dross to the appellant for the purpose of making Zinc Ingots. That statement of Shri Prabir Hazra is ex-facie incorrect as from Zinc Dross directly Zinc Ingots can never be made. That cross-examination of Shri Prabir Hazra was allowed by the Adjudicating Authority but no efforts were made to secure his presence when Shri Hazra was the prime witness of the department. That the said challans obtained from Shri Hazra are neither addressed to the appellant nor signed by Shri Prabir Hazra but by one Shri P.Samanta. (v) That under no circumstances, the quantity calculated as manufactured it is possible to manufacture such huge quantity with the limited infrastructure of the appellant. (vi) That relied upon statement of Shri Ajoy Bansal is dictated as no processing charges were paid for the Ingots manufactured by the appellant for Shri Ajoy Bansal. That during cross examination the rate were stated by Shri Bansal to be in the range of ₹ 2.50 to ₹ 3.00 per Kg. (vii) That process of manufacturing Ingot started only with the receipt of scrap from M/s. Anjali Impex as per the statement dt. 10.08.2000 of Shri Deb Nath Bhattacharya, Accountant of M/s. Sylvan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the learned DR during hearing before us do indicate that Zinc Ingots can be made out of Zinc Ash/Dross (Gaad). Statement dt. 06.09.2000 of Shri Sunil Kumar Gupta partner of the appellant, while giving answer to Q.No.4 of his statement, clearly stated that he did not know the names and addresses of the persons who send them the material for processing. The challans under which materials are received indicate the processes of grinding and melting were required to be done and other processes of casting and sieving are scored off. The statement dt. 17.08.2000 of Shri Deb Nath Bhattacharya (Accountant ) of the appellant confirmed the rate of processing to be ₹ 1.50 per Kg. of material received and that ingot manufacturing started in the last few days. Shri Prabir Hazra, Proprietor of M/s. Super Galvanizing Works in his statement dt. 31.08.2000 stated that he is getting Zinc Ingots manufactured out of Zinc Dross supplied from M/s. Sylvan Chemicals and also produced two challans dt. 22.07.2000 and 05.08.2000. However it is observed from copies of these challans that none of these were signed by Sri Prabir Hazra but have been signed by one Shri P.Samanta. Cross-examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Zinc Ingots will depend upon the percentage of metal content contained in Zinc Ash/Dross. It is also observed from the show cause notice that for the entire period 1996-1997 to 2000-2001 value of Zinc Ingots has been taken at a uniform rate of ₹ 65 per Kg. as per calculations made in Annexure I to the show cause notice dated 01.02.2001. The method adopted is not reliable and logical in view of the fluctuating nature of market forces. Accordingly duty calculated and demanded in the show cause notice is not correct and legally not sustainable. 6. In view of the observations made in paragraph 4 and 5 above case of clandestine removal is not proved against the appellant and appeal filed by the appellant to that extent is required to be allowed. 7. So far as confiscation of 20.440 MT of Zinc Ingots, seized in Appellant s factory premises is concerned, it was argued by the learned Advocate of the appellant that this quantity seized/confiscated will be eligible to small scale exemption. We are of the opinion that this aspect is required to be deliberated by the Adjudicating Authority in the light of this order as this claim was not made before the Adjudicating Authority. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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