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TMI Blog2018 (9) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... statements were taken under threat and pressure. Further, these statements were never examined in terms of Section 9D of the Act - on the basis of statements recorded and without following the procedure of Section 9D of the Act, the said statements are not reliable - it cannot be alleged that appellant was not doing manufacturing activity. Whether the goods manufactured by the appellant were exempt from payment of duty in terms of N/N. 4/2006-CE dated 01.03.2006? - Held that:- Admittedly, it is taken on record that appellant was not required to pay duty and whatever amount has been paid by the appellant was not duty. If the said amount is not a duty, then the provisions of Section 11A of the Act are not applicable to the facts of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The facts of the case are that the appellant s firm is a partnership firm having a unit in the state of Jammu Kashmir and are manufacturing PVC compound granules and PE compound granules chargeable to Central Excise duty under heading 3901 and 3904 of the Central Excise Tariff. The partners of the appellant firms are Shri V.K. Agarwal and Shri Om Prakash Agarwal. They are availing the benefit of the Notification No. 56/2002-CE. According to the appellant, they manufacture their final product out of plastic scrap as well as fresh plastic granules to the extent of 20% to 40%. This unit had commenced commercial production in July, 2006. The unit was visited by the Jurisdictional Central Excise officers on 24.07.07. In course of the visi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show diesel consumption for running the DG set for manufacture, they run the DG set for some time, that as regards the excess stock of finished goods, this material had been received as such against the invoices of raw material from M/s Gargo Plast India, New Delhi and the same was going to be sold by them without carrying out any manufacturing activity, but on payment of duty as per their regular practice in past. In respect of shortage of raw material, he attributed the same to their practice of adjustment towards receipt of finished goods. In view of the disclosures made by the Foreman Shri Ramesh Kumar, the Production Manager Shri Hemraj Takasia, and Manager of the appellant firm Shri Jodhraj Sharma, the excess stock of finished product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wal. 2.2 This show cause notice was adjudicated by the Commissioner vide order-in-original dated 10/07/10 by which - (a) the duty demand of ₹ 53,24,260/- was confirmed against the appellant along with interest on it under Section 11AB; (b) penalty of equal amount was imposed on the appellant under Section 11AC and, (c) penalty of ₹ 2,00,000/- was imposed on Shri Vinod Kumr Agarwal under Rule 26 of Central Excise Rules, 2002. Against the above order of the Commissioner, these two appeals have been filed. 3. Ld. Counsel for the appellant submits that appellant were carrying out genuine manufacturing activity and they were manufacturing PE/PVC granules from plastic scrap and fresh plastic to the extent of 20% to 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a duty and an amount paid by them, therefore, the said refunded amount cannot be recovered in terms of Section 11A of the Central Excise Act, 1944 as the said refund is neither on account of payment of short duty or non payment of paid or erroneously refund of duty, as the said amount is not duty. Therefore the provisions of section 11A of the Act are not applicable to the facts of this case. 4. On the other hand ld. AR reiterated the findings of the impugned order. 5. On careful consideration of the submission made in the case in hand, we find that two issues emerges from the facts of the case are; (a) the appellant is not manufacturing any excisable goods and just have shown their manufacturing activity without doing any activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant who retracted their statements on the very next day, stating that statements were taken under threat and pressure. Further, these statements were never examined in terms of Section 9D of the Act. Therefore, as held by this Tribunal in the case of Ambika International and Jindal Drugs Pvt. Limited that statements recorded during the course of investigation, if not examined in terms of Section 9D of the Act, the same are not admissible and the same cannot be taken against the assessee. Therefore, on the basis of statements recorded and without following the procedure of Section 9D of the Act, the said statements are not relaibale. In that circumstance, it cannot be alleged that appellant was not doing manufacturing activity. We find t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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