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TMI Blog2019 (4) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... on fulfilment of such conditions for exemption under the subject notification, exemption available shall be extended to the appellants. The appellants have admittedly neither maintained any record nor filed any return even though they were selling goods as fly ash bricks, therefore, extended period of limitation in terms of Section 11A of the Act has rightly been invoked. The present is a case of wilful evasion of duty. Denial of cross-examination of chemical examiner whose report has been used against them - Held that:- At this stage, it would be appropriate to refer to the appellants’ reply to the show cause notice (Annexure-A/4) stating that the report of chemical examiner is not on record, therefore, copy of the same may be provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty? (ii) Whether on the facts and circumstances of the case, is the impugned demand barred by limitation in terms of Section 11A of the Central Excise Act, 1944? (iii) Whether the Authority below erred in law and due procedure in accordance with law in relying on the views of the chemical examiner without affording the appellant an opportunity of cross-examining? (iv) Has the Department arrived at the conclusion against the Assessee regarding the nature of the material passed off by the assessee as fly ash bricks , based on reliable material and technical data? Is such finding in accordance with law? 2. The appellants are the manufacturer of sponge iron and fly ash bricks. In course of audit, it came to the notice of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been done unless it contains fly ash, the liability to pay on clearance of fly ash bricks squarely lies on the appellants. It is also recorded that the appellants have themselves mentioned fly ash bricks in their accounts and sale bills. The Commissioner further found that the noticee vide its letter dated 13-5-2008 informed that ESP dust bricks i.e. fly ash bricks manufactured by them contain 48.2% of fly ash by weight and that in its commercial invoice description of goods, it is also mentioned by the appellants as fly ash bricks, however, the noticee neither maintained proper accounts of receipt and use of fly ash nor filed any monthly return in this regard. 4. Repelling the contention of the appellants that it used bottom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-9-2016 by leaving it on the jurisdictional authority to verify the accounts maintained by the appellants and on fulfilment of such conditions for exemption under the subject notification, exemption available shall be extended to the appellants. 8. The appellants have admittedly neither maintained any record nor filed any return even though they were selling goods as fly ash bricks, therefore, extended period of limitation in terms of Section 11A of the Act has rightly been invoked. The present is a case of wilful evasion of duty. 9. Here it would be profitable to refer to the judgment rendered by the Supreme Court in the matter of T.N. State Transport Corpn. Ltd. v. Collector of C. Ex., Madurai [2004 (166) E.L.T. 433 (S.C.)]. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot when it is based on the appellants own admission. At this stage, it would be appropriate to refer to the appellants reply to the show cause notice (Annexure-A/4) stating that the report of chemical examiner is not on record, therefore, copy of the same may be provided to them. This itself makes it apparent that the department has not relied on the chemical examiner s report, therefore, there was no question of affording the appellants an opportunity to cross-examine the chemical examiner. The Schedule forming part of profit and loss accounts of the appellants for the period ending on 31-3-2005 and 31-3-2006 would refer to the items sold during the period specifically mentioning sales of fly ash bricks . Thus the appellants themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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