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TMI Blog2019 (4) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with additional evidence (iv) non-reliance of on the investigation report submitted by the Range Superintendent by the order of Adjudicating Authority - Appeal allowed - decided in favor of appellant. - Appeal No. E/342, 343, 344 & 345/2007-DB - Final Order No. FO/A/77193-77196/2018 - Dated:- 19-9-2018 - Shri P.K. Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri Dr. Samir chakraborty, Sr. Advocate, G.K. Mundhra, CA- for the appellant(s) Shri D. Aaldar,, AC(AR) for the Respondent (s) ORDER Per Shri Bijay Kumar 1. Being aggrieved with the impugned order the appellant has filed the present appeal. 2. The fact of the case if that the appellant is engaged in the manufacture of steel wire classifiable under CET S.H. No. 7217.90 and 7312.10 respectively. The appellant is duly registered for the manufacture of the said goods. By the impugned order the Commissioner, as adjudicating authority, has confirmed the duty demand of ₹ 81,23,530 against the appellant under the provisions of Section 11 A of the Central Excise Act, 1944 (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weighbridge denied that the goods belong in to M/s MVS Wire and M/s Vika Manufacturing Company. Ld. Sr. Advocate submits that the statement of owner, namely, Mr. Om Prakash Choudhary is wrong and incorrect on face of it. The Commissioner was wrong in accepting the alleged statement of Mr. Om Prakash Choudhary, further the Commissioner was also not justified in not accepting the evident produced by the appellant in respect of 280 weighment slips on the ground that the appellant has not in corroborated with the removal of the goods on payment of duty the weighment slips in their defence. It was also submitted on behalf of the appellant that in the impugned order, the Commissioner has not disputed the correctness of any of the details in the aforesaid statement at Annexure B-1 filed by the appellant. Further, the Commissioner has not disputed the authenticity and correctness of the excise invoice, job work, challan , purchase invoice and other document filed him. The Commissioner as a Adjudicating Authority, has also not disputed the correctness of the invoices of M/s MVS Wire and M/s Vika Manufacture Company, which were also filed by the appellant before him. In the circumstances the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of consignee is mentioned. Such weighment slips also do not contained the goods were, and therefore, there is absolutely no basis that in every case weighment slips related to the appellant. The appellant also submitted the details and freight paid in each and every case of the clearance by the appellant to the transporter. The entry thereof is found in daily stock account register or the job work register. The appellant has specifically replied to the Commissioner in the Show Cause Notice that along with the evidence regarding the bill raised by the transporter for freight charges. As regards the adjudication in the impugned order that weighment slips books were recovered from the gate of the registered premises of the appellant. It was submitted that the appellant did not use any of the such weighment slips. In this case, no search was carried out under Rule 22 of the 2002 Rules on the appellant. There is no provision in this rule, which empowers the officer to make any search or make any recovery in question recovery of the documents of the Central Excise Officer from the gate or any part of the appellant registered premises did not arise at all. Also there is no alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to the appellant there may be signature, initial, of the appellant s staff in addition to signature of weighbridge staff. Such signatures were taken in weighment slip have been taken place in their presence. Further, the Commissioner has appreciated that all these cases, where is weighment slips bearing the signature of appellant staff, the same was co-related by its various outgoing/incoming consignment. The Commissioner in the impugned order has not given any order accepting such evidence. Also appellant relied upon in case of Brims Products vs. CCE [2001 (130) ELT 719 (Tri-Del.)] 8. Further without prejudice Ld. Advocate submits that during the relevant period there was no duty liability on the wire drawn from the wire rods. The determination of the name of the goods and their tariff classification by the Commissioner was absolutely essential before holding that the appellant is liable for the payment of duty. The appellant submitted that prior to insertion of the Section note 10 in Section 15 of the Central Excise Tariff with effect from 9/7/2004, no duty was leviable on the non alloy steel wires as process wire was held as not manner to manufacture the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. CCE [2007 (210) ELT 266 (Tri.Bang.)] (ix) Lakshman Exports Ltd. vs CCE [2002 (143) ELT 21 (SC)] (x) CCE vs. Technoweld Industries [2003 (155) ELT 209(SC)] 10. Further, it was stated that the issue raised before the Commissioner appeal in case of the demand which was confirmed by the Ld. Joint Commissioner has also not been considered by the Commissioner while deciding the impugned case. The reliance was placed on the following decisions; (I) HMT Machine Tools Division vs. CCE [2007 (210) ELT 266 (Tri-Bang.)] (II) Lakshman Exports Ltd. vs. CCE [2002 (143) ELT 21 (SC)] 11. Further the Advocate also states that the cross examination has required by the appellant was not permitted by the Ld. Adjudicating Authority in violation of principle of natural justices and also submitted the provision contained in Section 9D(1) of the Central Excise Act, 1944. Further, no cross examination or raw material supplier was also permitted which is also in violation of the provisions of the Section 9 D (1) of the Act and for which the reliance was placed in case of CCE vs. Technoweld Industries [2003 (155) ELT 209 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he third party cannot be placed without proper corroboration thereof through independent investigation as has been held in the following judgments of Hon ble this Tribunal; (i) Rhino Rubbers Pvt Ltd. vs. CCE, Banglore-[1996 (85) ELT 260] (ii) Shyama Papers Ltd. vs CCE-[2004 (168) ELT 494 (Tri-Del.)] (iii) Bhandary Industries Metals Pvt. Ltd. vs. CCE, Goa [2009(245) ELT 613(Tri-Mumbai)] 15. In view of above, we are of the opinion that no case has been made against the appellant for want of (i) proper investigation (ii) denial of cross examination asked by the appellant as per section 9D (1) of the Central Excise Act (iii) reliance on the third party evidence without any corroboration with additional evidence (iv) non-reliance of on the investigation report submitted by the Range Superintendent by the order of Adjudicating Authority. 16. There are large number of decisions of this Hon ble Tribunal/ High courts/ Apex Court on this aspect. For the brevity of this order, we do not reiterate the same which has already been relied upon by the Ld. Sr. Advocate referred above and also in this order. 17. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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