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TMI Blog2018 (1) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per: Anil Choudhary The appellants are in appeal against Orders-in-Original confirming the proposed demand along with penalty, arising from the same set of investigation on the allegation mainly that the appellants M/s J.V. Industries (P) Limited (JVIPL), Shahdara, Delhi-93 and M/s Ganpati Rolling Pvt. Limited (GRPL), Shahdara, Delhi have diverted copper cathodes (inputs) to M/s JMW India Pvt. Limited (M/s JMWIPL), Jammu, during the period in dispute being 2006-07 and 2007-08. Further, copper scrap purchased from market without bills was utilised by JVIPL for their own use and further JMWIPL obtained fake purchase invoices of copper scrap from various scrap dealers to balance their records and the said purchase transaction was rejected by the Id. Commissioner. Based on the aforementioned allegation different show cause notices were issued and the demands were confirmed on contest as follows: On JMW (1) Pvt. Ltd., Jammu Order in original No. JNK/CEX/035/COM/2012 dt.10.01.2013 Show cause notice dated 02.06.2011 Period of dispute May 2006 to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intelligence that JVIPL was availing cenvat credit on nickel/ chromium (inputs) which was allegedly being used for manufacture of their final products namely ingots/ rods. Statement of one Shri Shivji Gupta (Production Manager) of JVIPL was recorded on 26.03.2008 wherein he inter alia stated that nickel was not being used in their factory in the manufacture of ingots. He also stated that they have not used copper cathodes in the manufacture of copper ingots whereas they have actually used copper scrap instead of copper cathodes which they have purchased from local sources without bills and the copper cathode purchased were diverted to another unit namely JMWIPL, Jammu. On the basis of the said statement, show cause notice dated 30.12.2008 was issued, wherein it was proposed to deny cenvat credit on nickel. The said issue, pursuant to remand by this Tribunal, is pending before the Adjudicating Authority. 3. The Anti-Evasion Officers again visited the unit of JVIPL and GRPL on 08.07.2010 and the panchnama was drawn. Statement of the said Shivji Gupta, Production Manager was recorded on 30.08.2010 wherein he stated that they have used copper cathodes in the manufacturing of coppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have also consumed 2783.97 MT of copper cathodes which were diverted by JVIPL and GRPL on which cenvat credit of ₹ 15,88,37,495/- was available to them during the period in dispute. Hence, this amount was demanded under para 2(c) (g) of Notification No.56/2002-CE, as amended, read with Section 11A of the Central Excise Act. The Id. Commissioner in the impugned order dated 10.01.2013 have confirmed the said demand with equal amount of penalty. 5. Assailing the impugned orders Id. Counsel for the appellant states that the whole case of the department is based upon statement of Sh. Shivji Gupta dated 26.03.2008. Ld. Commissioner have erred in relying on the statement as on the basis of the said statement show cause notice was issued on 30.12.2008 which was for denial of cenvat credit on nickel. The said denial of cenvat credit on nickel was confirmed by the Id. Commissioner. The said order was challenged by JVIPL before the Tribunal, and this Tribunal allowed the appeal by way of remand vide Final Order No.A/52510-52522/2015 dated 06.08.2015 on the grounds of violation of Principles of Natural Justice. 6. In the second statement dated 30.08.2010 of Sh. Shivji Gupta, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory of JVIPL which was used to cut copper cathode. He also stated that he stood by the contents of his later statement dated 30/08/2010. The Id. Counsel further urged that it is pertinent to mention that the adjudicating authority before whom this cross examination took place, did not examine or re-examine the witnesses, meaning thereby that he did not dispute the averments of Shivji Gupta tendered by him in his cross-examination. The adjudicating authority have erred in not accepting the averments of Sh. Shivji Gupta made in cross examination on the ground that his statement during investigation (on 26.03.2008) was recorded by a proper officer under Section 14 of the Act and Sh. Shivji Gupta did not file any retraction. Ld. Commissioner further ordered that the threat and beating is a plea taken by way of afterthought to avoid legal consequences. This finding as per the appellants is wholly untenable and contrary to the settled position of law. It has to be appreciated that statement which is recorded under Section 14 of the Act, during investigation and enquiry is not sacrosanct and is subject to examination as provided under Section 9D of the Act, which mandates that a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sh. Sushi] Kumar Jain, Sh. Vinod Kumar Jain and Sh. Manoj Kumar Jain, were summoned. Only statement of one Sh. Vinod Jain (a new person) who become Director in JVIPL with effect from February, 2010 was recorded. The said Sh. Vinod Jain is a different person from the earlier Director, namely Sh. Vinod Kumar Jain. 10. That the Department relied upon certain inquiries which were made with regard to procurement of copper scrap by JMWIPL, Jammu and alleged, various suppliers of copper scrap were bogus and documents are fabricated for the purported purchases, with a view to cover up illegal diversion of duty paid copper cathode purchased by JVIPL and GRPL. Learned Counsel urges that such allegation against the company namely, JMWIPL, Jammu, which was not situated within the jurisdiction of Central Excise Commissioner Delhi-II was wholly without jurisdiction. 11. The fact that JMWIPL Delhi (Trading company) was transferring copper scrap and copper cathode to their factory at Jammu, is evidently clear from detailed statement recorded of the proprietor of 'Kanpur Kashmir Roadway', Delhi, Shri Manoj Kumar Yadav, who in his statement dated 11/08/2010 have categorically stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants-JVIPL, JMWIPL and GRPL. On receipt of requests for report from Central Excise Commissionerate, Delhi-Il dated 09/04/2010 the Central Excise, Commissioner, Jammu conducted intensive enquiries to find out whether JMWIPL, Jammu was having necessary infrastructure/ machinery to melt copper scrap, copper ingots and copper cathodes. The Id. Commissioner, Jammu have categorically stated in his report that JMWIPL, Jammu was duly equipped. The report also mentions that the records of JMWIPL, Jammu was scrutinized and it was found that they have purchased copper scrap from open market and the same was also stock transferred from JMWIPL - trading unit, Delhi. The report also mentions that JMWIPL, Jammu was also purchasing copper cathode from M/s Hindalco industries and M/s Sterlite industries Ltd. Further, the report of Commissioner, Jammu also states that the District Industry Center (DIC) authorities were regularly visiting the unit, and verifying the purchase of raw materials. All such verifications were duly recorded by DIC authorities in the raw material register maintained by JMWIPL, Jammu, which was known as import register. The Id. Commissioner in the impugned order hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated scissors because of the thickness and hardness of cathode. The appellants JVIPL and GRPL had asked for the cross-examination of the said Shri V.K. Mittal, but the learned Commissioner failed to produce him for examination and cross-examination. Thus, his statement is not reliable. The learned Commissioner have erred in relying on the same. Further, the appellant JVIPL stated that their Crucible was 20 inch and not 16 inch, which have not been found to be untrue by the learned Commissioner. It is further stated that JVIPL used to give two cuts on each piece of cathode thus cutting the same into three pieces and each piece of the diameter of 10 to 12 inch approximately could be easily fed into the furnace of 16 inch or 20 inch diameter. The appellant had further disputed the statement of Sh. V. K. Mittal and stated that they were using copper cathode ranging from 2MM to 3 MM, which could be cut by the hand cutter. Further JVIPL had taken a stand that no pilot experiment was done as to whether they were cutting copper cathode into two-three pieces and thereafter the same was fed into the furnace to manufacture copper ingots. The appellant had given a proposal during the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is not invocable. The SCN have referred to the earlier show cause notice dated 30/12/2008 in extenso, and also relied on the allegations made therein. 17. The learned AR, Mr. M.R. Sharma, and Shri Amit Gupta appearing for the Revenue states that the three assessee in question, namely, JMWIPL, GRPL and JVIPL are closely related as follows: - Name of the Unit Nature Directors during 2006-07 2007-08 J.V. Industries, 29, Saboli Industries Area, Shahdara Manufacturing Unit Jai Bhagwan Jain and Vinod K Jain (Father Son) Ganpati Rolling Pvt. Ltd, 520-A, G.T. Road, Shahdara Manufacturing Unit Sushil Jain, Manoj Jain Ashish Jain (Father Sons) JMW (1) Pvt. Ltd, 29, Saboli Industrial Area, Shahdara Regd. Dealer at Delhi Manufacturing Unit in Jammu Sushil K Jain Manoj Jain (Father Son) 18. Mr. Shivji Gupta the - Production Manager of JVIPL in his statement dated 26/03/2008 had admitted that they only used copper scrap (procured from local source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 2006 to March 2008 had purchased copper ingots from units at Jammu and copper cathodes from Hindalco. The invoices showed GRPL as the buyer and JV IPL as the consignee. Cenvat credit availed by GRPL was ₹ 4,63,09,268. JVIPL the job worker showed 1% burning loss in the job work - conversion of cathode into ingots. The ingots received from job worker - JVIPL and purchased from Jammu units were commonly entered in the form - IV register without any distinction. GRPL showed 1% wastage and 2% scrap generation for producing copper rods out of copper ingots. Similarly for producing copper strips out of rods they had shown 2.5 to 3% of waste generation. 21. During the Panchnama proceedings on 8 th July, 2010 at JVIPL, Mr. Vinod Jain - Director stated that they used only copper scrap and have only one hand cutter to cut the raw materials. As per records, they had availed Cenvat credit of ₹ 13,78,76,952/- on purchases from Hindalco (2411.099 MT valued at ₹ 83,73,69,279/-) and Sterlite. Under their letters 93.046 MT valued at 323.05 lakhs, were returned to Hindalco on 02/06/2007, since cathodes are not as per specifications. No electric cutter was available in factory, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also preparing test certificates for their finished goods and supplying them to their buyers with invoices. The certificate issued bears a declaration J.M.W copper continues wire rods have been manufactured using cathodes of LME grade . Thus, the certificate indicates that goods were not manufactured out of scrap, shown to have been supplied by trading unit and whatever purchase of cathodes was shown, it was from non-existent traders, using non-existing vehicles. Further, the general manager of Jammu unit - a metallurgist had stated that the plant was capable of running on copper cathodes containing 99.99% copper conforming to LME grade alone and raw materials like copper scrap/ ingots, could damage their graphite dies, besides producing poor quality of copper wire rods. Further, if they manufacture from scrap/ ingots their output copper wire rods will not be oxygen free. Trading unit of JMWIPL-Delhi showed purchases of 2380 MT of copper scrap/ cathodes from non-existing firms and sold to Jammu unit which is equivalent to 2411.99 MT of copper cathodes purchased by JVIPL during 2006 - 07 and 2007 08 from Hindalco/ Sterlite. Further GRPL showed purchase of 775.212 MT of cathod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en he was produced before the Magistrate. 27. According, the learned AR for Revenue prays for dismissing the appeals. 28. We have considered the rival contentions and perused the records. The earlier statement of Shri Shivji Gupta (SG for short) were recorded on 17/01/2008, 30/01/2008 and 26/03/2008. He was arrested on 25-26/03/2008 along with Mr. Sushil Jain. In the subsequent investigation the statement of Shri Shivji Gupta recorded on 30/08/2010, in which he stated that JVIPL had used copper cathode in the manufacture of copper ingots. The Revenue have relied on both the statement of Shri Shivji Gupta dated 26/03/2008 and 30/08/2010 (both are RUD). Further, in the cross-examination SG stated categorically that his earlier statement had been obtained by Revenue Officers under threat and after beating him. The use of coersion by Revenue is supported by the subsequent arrest, soon thereafter. We further notice that there is no suggestion by the Revenue or learned Commissioner during the cross-examination that SG is telling lies at the instance of directors of the appellant companies. In his subsequent statement as well as during cross-examination SG stated that JVIPL have use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RPL had requested for cross-examination of Shri V.K. Mittal. The Revenue have failed to produce their witness for cross examination. Hence, no reliance can be placed on such unsubstantiated statement. We also hold that the said statement of Shri V.K. Mittal is not admissible under the provisions of Section 9D of the Act. As regards the allegation of less burning loss at JMWIPL Jammu and comparatively more burning loss at JVIPL, Delhi, we notice that it is admitted fact that JMWIPL, Jammu, have a close furnace, whereas the furnace of JV IPL Delhi is an open furnace. It is an admitted fact that burning loss is bound to be more in their open furnace. Thus, we hold that the allegation in the SCN, regarding capacity to utilize copper cathode by JVIPL is not tenable. 30. The next ground/ contention of the Commissioner for denying Cenvat Credit on copper cathode is that the trading unit of JMWIPL, at Delhi had shown fake purchase of non-duty paid rejected copper scrap and copper cathode during the period, from six firms located in the State of Rajasthan and two firms located at Delhi. The learned Commissioner without proper enquiry held-firms were fake or sham firms as they were not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory of M/s JMWIPL-Jammu, to melt copper scrap, copper ingots and copper cathode. Thirdly the department did not prove that if JVIPL and GRPL had diverted copper cathode, how they were able to manufacture their finished Goods. Fourthly in support of their allegation that M/s JMWIPL-Jammu was only using copper cathode, reliance was placed on the statements of Sh.PK Saxena, General Manager of JMWIPL Jammu dated 08.07.2010 and 25.08.2010. In these statements, he had stated that he had joined as General Manager of JMWIPL Jammu in September 2009, and during his tenure they had only used copper cathodes as their raw material which was required to manufacture Oxygen free copper wire rods. Sh. PK Saxena was cross examined before the Commissioner (Adjudication) New Delhi on 28.05.2012, in which he stated that in order to manufacture oxygen free copper wire rods, the raw material required was copper cathodes. But if copper scrap is used the copper rod manufactured would not be of oxygen free quality, and the purity of such copper rods will be of lower grade depending on the quality of scrap used. 32. We are therefore of the view that findings of the Id. Commissioner on the above iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is nothing on record to show that these statutory records were false or incorrect in any manner. We have already observed above that payments towards the purchase of copper cathode were made through banking channels both by JVIPL and GRPL. There is no dispute on the quantum of manufacture of finished goods by JVIPL on their own behalf or on behalf of GRPL, and/or quantum of payments of Central Excise duty, on the said finished goods. 35. We therefore hold that no credible evidence has been brought on record to prove that JVIPL and GRPL had diverted the copper cathode to JMWIPL-Jammu. Consequently, we set aside the duty demand and penalty confirmed by the Commissioner both against JVIPL and GRPL. Since we have set aside the entire duty demand, we also set aside penalties against the other appellants. 36. Both JVIPL and GRPL have also raised the issue, that the duty demand in the present case is barred by time. Since we are allowing the appeals on merits, we leave the issue of time bar, open. JMWIPL 37. The proceedings against JVIPL. GRPL and others were initiated vide show cause notice dated 11-11-2010. In this show cause notice JMWIPL was also made a co-notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he unit was copper scrap and rejected copper cathodes and it was also stated therein that in the month of December 2006 the unit had purchased 2,57,847 kgs of the raw material out of which 49,972 kgs was purchased under Cenvatable invoices. He also took us through import register which was prescribed under local Industrial law, which has notings of DIC officials who had permitted use of copper scrap for home consumption. 39.4. Further there were Plant Based Checks (PBC), which were conducted by the jurisdictional Superintendent of Central Excise, who in this report dated 3.01.2007 has noted on the RG-I Register that the principal raw material of JMWIPL Jarnmu was copper scrap. The Commissioner in the impugned order has nowhere questioned the veracity of the above PBC checks. 39.5. That, the officers of Commissioner of Central Excise, Delhi-II, on their own conducted inquiries as to whether JMWIPL had received copper scrap or not, when they were conducting enquires against JVIPL and GRPL. However, neither JVIPL/ GRPL nor JMWIPL were confronted with any such evidence which was straightway relied upon in the show cause notice dated 11-11-2010 issued to JVIPL and GRPL. Subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Yadav dated 06-05-2010, which was relied upon by the Commissioner of Central Excise, Jammu in his enquiry report dated 24-05-2010, the officers of Commissioner of Central Excise, Delhi-II, Commissionerate had also recorded statement of Sh. Manoj Kumar Yadav dated 11-08-2010. In this statement She Manoj Kumar Yadav had categorically stated that they were transferring both copper cathodes which were shifted to their trucks with the help of crane, chain pulling or lifter and copper scrap which used to be packed in gunny bags which were loaded on the trucks by the labour. 39.10. Reliance has been placed on the invoices issued by M/s JMWIPL trading unit which were duly accompanied by GRs, Form VAT-58 (Road permit). It was not the case of the Revenue that TIN or CST numbers mentioned on the invoices were fake or these dealers did not have genuine banking transaction. No enquiry was conducted from the VAT department as to whether the Tin and/or CST were fake in any manner. No enquires were also conducted from the banks, as all the payments were made to the scrap dealer(s) through the banking channels. 39.11. That, all the trucks were duly checked at the sales tax check pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand was barred by limitation, as in the facts of this case proviso to section 11A cannot be pressed into service. 39.17. He, therefore, prayed for setting aside the Order-in-Original and allowing their appeal. 40. Ld. AR for Revenue relied on submissions already made, and the findings of Ld. Commissioner. 41. Upon considering the rival contentions, we find that Show Cause Notice dated 02-06-2011 issued to JMWIPL Jammu, is a replica of the show cause notice dated 11-11-2010 which was issued to JVIPL GRPL. In the earlier said show cause notice dated 11-11-2010, JMWIPL-Delhi (which was their trading unit) was also made a party and penal action was proposed against them under Rule 26 of Central Excise Rules, 2002. The Commissioner of Central Excise, Delhi, vide his order dated 15-10-2012 imposed the penalty of ₹ 1 crore upon JMWIPL, Delhi, under Rule 26 of the Central Excise Rules, 2002, which we have already set aside, as mentioned hereinabove. We note that the only difference in the allegations levelled in the show cause notice to JVIPL and GRPL, Delhi and the show cause notice 02-06-2011 to JMWIPL, Jammu, is that, in the former there was proposal to deny Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed in this enquiry report that raw material purchased through JMWIPL - trading unit, Delhi was transported by single transporter namely M/s Kanpur Kashmir Roadways Delhi. The invoices of the trading unit were accompanied by GRs issued by the above-mentioned transporter. As soon as the goods reached the border of J K State, there is toll tax barrier. It is mandatory for every vehicle carrying the goods to pay toll tax, and for this purpose goods are weighed on the weigh bridge. The documents are submitted to the toll tax authority and they check the contents of the vehicles randomly. M/s JMWIPL has been granted toll tax exemption on the recommendation of DIC Jammu. The examination of documents showed that each and every purchase made by M/s JMWIPL was duly weighed, entered and approved by the toll tax authority, as per these norms. All the exemption certificates/ slips are available in the records of M/s JMWIPL. Photocopy of one set of documents was enclosed with this enquiry report. 47. It has been observed in this report that on arrival of each consignment of raw material in the unit of M/s JMWIPL, they were informing the DIC Jammu and such authority had been regularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises of M/s JMWIPL. The said search was simultaneously conducted when the factory premises of both JVIPL and GRPL WERE visited by the officer of Delhi-II Commissionerate, at New Delhi. The enquiries from JMWIPL were conducted only with regard to machinery installed in the factory. A list of installed machinery was prepared and the officers had taken 42 photographs of the same. The visiting officers did not find any discrepancy in the records which were being maintained by JMWIPL. Even in all the statements which were recorded during the course of investigations which included two statements from Sh. P. K. Saxena General Manager dated 08.07.2010 25.08.2010 and one statement of Sh. Vishal Sharma Director dated 27.08.2010, the focus of enquiry was limited to the type of plant and machinery which was installed in the factory of JMWIPL, and nature of raw material which were being used by them. Sh. Vishal Sharma director in his statement dated 27.08.2010 stated that he was director of the company since 2005-06 and that they were using copper cathode/ scrap as their raw material for producing copper rod, since the inception of the manufacturing unit at Jammu. The officers did not enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) numbers of the said suppliers. We have gone through the accompanying documents with the said invoices, which include GR of the transporter Kanpur Kashmir Roadways and Form VAT 58 (Road permits). The said VAT-58 forms bear the stamp of check post situated at Lakhanpur. In face of this documentary evidence it cannot be held that JMWIPL - Jammu never received any copper scrap in their unit and instead received diverted copper cathodes. 53. We also observed that the finding of Commissioner of Central Excise (Adjudication), Delhi has been followed by the Commissioner, Jammu in the impugned order. Sh. P.K. Saxena was cross examined by the counsel of JVIPL, GRPL, JMWIPL and others before the Commissioner of Central Excise (Adjudication) New Delhi on 28.05.2012. He was asked whether copper scrap purchased by JMWIPL from the market could be used in their plant to which he answered that if copper scrap was used, the copper rod manufactured would not be oxygen free quality and the purity of such copper rods would be of lower grade depending of the quality of scrap used. We find that from the cross examination it is evidently clear that plant and machinery installed at JMWIPL Jammu was ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tariff act, 1985 (5 of 1986), other than goods specified in Annexure I appended hereto, and cleared from a unit located in the industrial growth centre, industrial infrastructure development centre or Export promotion Industrial Park or Industrial Estate or Industrial area or Commercial Estate, or scheme area, as the case may be, specified in annexure -II appended hereto, from so much of the duty of excise, as the case may be, leviable there on under any of the said Act, as is equivalent to the amount of duty paid by the manufacturer of goods, other than the amount of duty paid by utilisation of Cenvat credit under the Cenvat credit Rules, 2002. 1A. In cases where all the goods produced by a manufacturer are eligible for exemption under this Notification, the exemption contained in this Notification shall be available to the condition that, the manufacturer first utilises whole of the cenvat credit available to him on the last day of month under consideration for payment of duty on goods clearing during such months and pays only the balance amount in cash. 56. The stand of M/s JMWIPL Jammu is that since they had utilized copper scrap as one of their raw materials in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Range Officer who furnished the figures of duty paid through account current and duty paid through cenvat credit. The jurisdictional Assistant/ Deputy Commissioner sanctioned/ determined the amount of refund to be taken by way of self credit, after proper application of mind and by passing adjudication order. We therefore agree with the submission of the Ld. Counsel that the said orders had attained finality as these orders were never reviewed. Hence the department could not issue show cause notice for the recovery of the same for which appealable refund orders were passed. 59. In view of the above findings discussion we set aside the impugned order and allow the appeal. 60. In this appeal, JMWIPL has raised the issue of demand being hit by time bar. Since we are allowing the appeal on merits, we are not required to go into the issue of time bar. 61. To sum up:- (a) Both the impugned orders are set aside, (b) all the appeals are allowed with consequential benefit (s). (c) Ground of limitation (invocation of extended period) is left open. (B. Ravichandran) Member (Technical) (Anil Choudhary) Member (Judicial) Per. B. Ravichandran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is starting from the first statement up to the outcome of cross-examination and also collate the facts revealed in such deposition with corroborative evidence in order to arrive at a finding ; (2) the capacity and infrastructure available with JVIPL for manufacture of copper ingots/rods using copper cathode was also a matter of dispute. Here again, the later statement of Shri Gupta cannot be automatically relied in the presence of other corroborative evidence which supported the earlier statement of Shri Gupta to the effect that JVIPL could not have used copper cathodes. I note that the statement of Shri V.K. Mittal, a third party having similar manufacturing facility, was sought to be discounted only on the ground that he was not subjected to cross- examination. Accordingly, the statement of Shri V.K. Mittal was held to De inadmissible as evidence. I find that the statement of Shri V.K. Mittal is only a corroboration and the decision is not solely based on such statement. A clear finding on the capacity or infrastructure of JVIPL to manufacture copper ingots/rods using copper cathode has to be arrived at independently even without reliance on the statement of Shri V.K. Mittal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal papers and proposed finding of learned Member (Judicial) on the appeals, I am of the considered view that there is a prima facie case against the appellants and the matter requires re-adjudication by the Original Authority after considering all the submissions, pointwise, made by the appellants on various issues some of which are highlighted above. Hence, I find it fit and proper to set aside the impugned order and remand the matter to the Original Authority for a more comprehensive appraisal of all the evidences and to give findings on all points raised by the appellants. As such, I find that the matter requires to be remanded to the Original Authority for a fresh decision. (B. Ravichandran) Member (Technical) In view of the different findings recorded by the Member (judicial) and Member (Technical) in this appeal, the point of difference as emerges is that : whether the appeal can be allowed as held by the Hon ble Member (Judicial) or the matter should be remanded back to the Original Authority for a fresh decision, as held by Member (Technical) . (Anil Choudhary) Member (Judicial) (B. Ravichandran) Member (Technical) Per: Anil Choudhary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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