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TMI Blog2019 (3) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... rds. When the adjudicating authority has repeatedly expressed his difficulty to decide the matter with the available evidence on record, we are unable to fathom how the lower authority has arrived at a very specific figures of production and clearance of CS and US for the period 1981-85 in Annexure-A to the order. No clear indication has been given by the adjudicating authority as to how these figures have been arrived at, notwithstanding his being "constrained at not having all the evidence on hand". There is no hesitation in holding that the conclusions arrived at in the impugned order not only suffer from lack of evidence and investigation and further, is in total disconnect with CESTAT remand directions contained in the earlier Final Order No.302/2008 dt.31.3.2008 - appeal allowed - decided in favor of appellant. - Appeal No. E/475/2011 - Final Order No. 43171/2018 - Dated:- 31-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri C. Manishankar, Senior Advocate For the Appellant Shri B. Balamurugan, AC (AR) For the Respondent ORDER Per Shri Madhu Mohan Damodhar The facts of the case are that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t price at which marketing companies sold the excisable goods was the assessable value and that appellants had manufactured and cleared CS in the guise of US; accordingly confirmed the proposals made in the SCN. In appeal, CESTAT Chennai vide Final Order No-302/2008 dt. 31.03.2008 inter alia set aside the demand with respect to related person concept and clandestine removal and remanded the case to the original authority for the limited purpose of reconsidering the demand of duty on the CS found to have been removed as US, by taking into account the relevant observations of the Vice President and Third Member. The Tribunal also held that demand of interest and penalty would depend on the amount to be realized, along with confiscation of plant and machinery. In de novo proceedings the Commissioner vide impugned order No. 15/2011 dt. 05.07.2011, concluded that a systematic method had been adopted by appellants to falsify the production and clearance of CS, artificially manipulate the records and to suppress the final value of the actual commodity manufactured and allowed the benefit of such increase in price to be enjoyed and accumulated by the selling companies which were under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided date and month wise, as directed by the CESTAT. (iv) The Ld. Authority has provided Annexure B as the statement as to how the differential duty was arrived, A perusal of the same would show that there is no reference to Annexure A in the said statement. The Ld. Authority has simply extracted the quantity described in the Show Cause Notice and calculated differential duty on the quantity without following the directions of the CESTAT in the majority order. There is also no finding/reasoning with regard to the calculation and the method in which these duties are arrived at in the impugned order. Further, there is no finding as directed by the Tribunal, regarding date and month wise production. It is also not explained in the order as to how the Ld. Authority came to the conclusion that the entire quantity of the upholstery sheets shown in the tabular statements were cleared as cavity sheets, without evidence. The Ld. Authority has merely reiterated the various reasons of the original authority and applied the theory of preponderance of probability for the entire period which exercise was already considered and set aside/rejected by the majority order of the CESTAT. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was some discrepancy which was admitted by the Production Manager. The grievance of the appellants is that, on the basis of such admission, the Collector has demanded duty on the entire quantity of sheets. According to Ld. Counsel, this matter requires to be re-examined by the adjudicating authority. Ld. Special Consultant has reiterated the relevant findings of the Collector. After considering the submissions, I am also of the view that the question whether duty should be demanded on the sheets has to be re-examined by the adjudicating authority 5.2 The Final Order per Majority was as under: As per the majority view taken in this case, it is held that the selling companies were not related persons for the assessee in terms of Section 4 (4) (c) of the Act and, therefore, the demand of duty based on the finding of relationship is not sustainable and the same is set aside. The demand of duty on Cavity Sheets found to have been removed as Upholstery sheets is also set aside and this issue is remanded to the lower authority for reconsideration by taking into account the relevant observations contained in the orders of learned Vice President and Third Member. The Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order a reference is also made to Memorandum dt. 14.12.2010 stating that the files listed from Sl.No.1 to 15 therein were hard to find as appellant's representatives who received such records were no longer in their employment. The adjudicating authority thereafter has proceeded to conduct de novo adjudication based on available records. 5.5 In the circumstances, when the adjudicating authority has repeatedly expressed his difficulty to decide the matter with the available evidence on record, we are unable to fathom how the lower authority has arrived at a very specific figures of production and clearance of CS and US for the period 1981-85 in Annexure-A to the order. No clear indication has been given by the adjudicating authority as to how these figures have been arrived at, notwithstanding his being constrained at not having all the evidence on hand . 5.6 Even more puzzling is the fact that notwithstanding very clear directions of the Tribunal's remand order, the adjudicating authority holds in para 13.1 of the order that findings of the original authority becomes relevant . In para 13.2 also, the adjudicating authority adopts the conclusions earlier arrived ..... X X X X Extracts X X X X X X X X Extracts X X X X
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