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TMI Blog2017 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... r any reason the cross-examination of these persons are not possible then these reports cannot be taken into consideration for deciding the case. As regard reports of Kiran Electronics and the technical details retrieved from internet from Website of Nichicon Corporation. We are of the opinion that since in the earlier two orders this Tribunal has clearly directed the Commissioner to examine the technical aspect only through the report of Government Institutes/Department of Electronics. Therefore it was not open for Commissioner to rely on the opinion of Kiran Electronics and website, therefore we direct the Commissioner not to rely on these documents - matter related to the issue on exemption N/N. 13/97-Cus remanded to the Commissioner. We direct the Commissioner to first cross-examine authors of the report given by BITS Pilani and College of Engineering, Goa if the cross-examination is not possible the said reports to be ignored and the matter may be decided afresh on the basis of other available records - matter on remand. Whether the modvat credit to the appellant on the aforesaid goods can be denied for want of correct declaration made under Rule 57G of erstwhile Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much as copies of reports obtained from the Birla Institute of Technology and Science, BITS, Pilani, and College of Engineering, Goa was not provided to the appellant and also not considered cross-examination of the authors of the reports. She submits that though the reports were provided but no cross-examination was conducted. The cross-examination was very much necessary for the reason that the reports is cryptic without any basis therefore the same cannot be used against the appellant. The order is again suffered from violation of principles of natural justice. It is her submission that there is no dispute that they have imported cans with leads wherein certain additional parts are also included therefore merely because of some additional parts the nature of the goods i.e. cans with leads does not get altered. There is no reports on this vital aspect it is also not known what were the queries put up before the persons who has given the reports, therefore such reports should be out rightly discarded and in absence of that the matter should be decided on the available records. She also submits that the adjudicating authority had heavily relied upon the opinion of Kiran Electronics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty therefore even if it is assumed that the goods was declared incorrectly or not declared, the credit for this reason cannot be denied. 3. On the other hand, Shri Ajaykumar Ld. Additional Commissioner (A.R.) appearing on behalf of the Revenue. In the beginning of the hearing submitted a letter of adjournment for want of some relied upon documents available in the Commissionerate Office, on which the Ld. Counsel Ms. Rukmani Menon raised a serious objection saying all the documents are available on record and requested to hear the matter and if at all the other side of the view that further documents are required the Bench, may adjourn the matter, on which both sides consented for hearing of the matter. Shri Ajaykumar Ld. AR reiterates the findings of the impugned order. He submits that the appellant have declared the imported goods as cans with leads whereas the factual goods are not only cans with leads but it is assembled with various other parts and the same has been viewed not as cans with leads but aluminium semi-finished electrolytic capacitors as per the reports of the technical expert. Therefore the goods imported by the appellant is not eligible for exemption notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to them. Therefore, we see force in the submission that the order has been passed without furnishing copies thereof. In the interest of justice, we set aside the impugned order and allow the appeals by way of remand to the adjudicating authority for fresh decision after furnishing copies of the reports abovementioned and considering their requests for cross examination and after extending an opportunity of being heard in their defense. As per above order, the adjudicating authority was supposed to provide the report of the technical expert and also to consider the cross-examination. From the impugned order, we find that though the technical report was provided to the appellant but the cross-examination could not be conducted for one or other pretext. The appellants have taken this matter very strongly that the reports is very cryptic for the reason that except giving views/opinion that the goods are in the nature of aluminium semi-finished electrolytic capacitors, did not discuss anything above the cans with leads which was admittedly imported though along with other components. The report also not discussed, the overall nature of the goods parts contained there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant have wrongly declared the inputs the modvat credit only for this reason cannot be denied. The fact is that whatever input imported by the appellant was received by the appellant in their factory and used in the manufacture of aluminium semi-finished electrolytic capacitors which was cleared on payment of duty. Since this fact is not under dispute modvat, credit only for want of correct declaration cannot be denied. In terms of amended Rule 57G by Notification No.7/99-CE dt. 9.3.1999, whereby it was clarified that the credit cannot be denied for non-filing of declaration under Rule 57G. This issue has been considered in various judgments and it was consistently held that credit for such lapse cannot be denied, some of the judgments have cited below. (i) Mansi Steel Pvt. Ltd. Vs. Commissioner of Central Excise, Patna - 2009 (248) ELT 426 (Tri.-Kolkata) (ii) Hind Lamps Ltd. Vs. Commissioner of Central Excise, Kanpur - 2009 (246) ELT 319 (Tri.-Del.) (iii) R.C. Gupta Bros. Vs. Commissioner of Central Excise, New Delhi - 2009 (246) ELT 294 (Tri.-Del.) (iv) SAIL Vs. Commissioner of Central Excise Ranchi - 2008 (222) ELT 233 (Tri.-Kolkata) In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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