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TMI Blog2022 (2) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was not only not contained in the show cause notice but which in fact runs counter to the Show cause notice. The Commissioner came up with a new ground which is not there in the Show cause notice namely that para 4 of the rebate Notification 21/2004 permits sending the goods to job worker only for the limited purpose of tests, repairs, refining, reconditioning or manufacture of intermediates product and not for manufacturing of final product. He held that H.K Impex could not have sent the inputs to the job worker for the manufacture of Final product by the Job workers. The Commissioner has passed the present impugned order in original dated 30.09.2020 in which he has proceeded to hold the contrary and confirmed the Show cause notice by confirming the demand for rebate with interest and rejected the pending rebate claim. As per the above development, it is found that the main allegation which is the foundation of the case is that the appellant have not received the inputs and the same was not used in the export goods, therefore, the appellant is not entitled for rebate claim does not exist in terms of Commissioner s earlier order dated 13.08.2018 read with Tribunal s Miscella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporters gets demolished. It cannot be said that the appellant did not have sufficient machinery for manufacturing. It is also noticed that the DGCEI also obtained a Chartered Engineering Certificate regarding installed capacity of production of H K Impex at Umbergaon and their two job workers. However, no certificate of Chartered Engineering is produced to show that the machinery and power consumption were insufficient. As regard the allegation of lack of machinery and absence of manufacturing activity at job worker s premises at Vasai, it was found totally incorrect and unsustainable for the reason that the appellant have given address of the job workers, the DGCEI chose to carry out verification only at one unit of job worker whereas, the second unit located adjacently of which intimation had been given, was not verified by DGCEI - department s case is also on the allegation that the goods exported by H K Impex under claim for rebate were those purchased from Delhi suppliers through Shri Sharad Gupta. The report which was available in DGCEI file obtained under RTI by the appellant states that verification was done with Container Corporation of India Ltd. to ascertain whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the export of stainless steel utensils under claim of rebate of duty paid on Inputs used in the manufacture and export of Stainless Steel utensil in its factory and its Job workers. Investigation conducted by the officers of the DGCEI revealed that the raw material shown purchased were never brought to the factory of the appellant or to the premises of the Job Workers, declared with the department and the stainless steel utensils, which were exported, were procured from other manufacturers. The show cause notice was issued for recovery of demand. The Adjudicating Authority confirmed the demands. On further appeal, Tribunal vide Final Order No. A/11128-11130/2014 dated 25.06.2014 remanded the matter for denovo proceedings. Resulting in, Commissioner confirmed the demand vide OIO dated 13-3-2018. Aggrieved, Appellant again filed Appeal before the Tribunal. Vide Final Order A/ 10341-10343/2019 dtd. 21.02.2019 the tribunal again remanded the matter to adjudicating authority, which upheld the original order and dismissed appeal of appellant. Aggrieved appellant has once again approached this Tribunal. 2. Shri J.C Patel, Learned Counsel along with Shri Rahul Gajera and Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. Prior to investigation by DGCEI, the Range Officers visited the factory for verification of the extent of wastage in the manufacturing process, etc in connection with the rebate claims. During such verification the officers took stock of the duty paid inputs, goods in process and finished goods. The inspection report of department gives the details of raw materials, invoices, LR nos. and date under which the same were received, the name of supplier, the qty. received, the qty issued for cutting, the qty. of circles made out of cutting and the qty. of scrap. The said Inspection report signed by the departmental officers, whose statement has not been recorded by the DGCEI. The said inspection report contains the details of the duty paid inputs received from the suppliers. The Commissioner has completely disregarded the said Inspection Reports of the Superintendent and Inspector. The Statement of Shri Navneet Chhabra that no goods were sent for Job Work to Vasai is on the face of it false in view of the fact that when the officers went for search to the premises of Job Worker on 29.03.2006, Shri Navneet Chhabra was found to be present there and he introduced himself as Produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been disputed by department in the present matter. The allegation of department that goods exported by Appellant under claim of rebate were those purchased from Delhi suppliers through Shri Sharad Gupta is totally baseless. The Report/review in DGCEI file obtained under RTI, clearly states that verification was done with Container Corporation of India Ltd. (CONCOR) to ascertain whether the numbers of vehicle under which export goods were received at Nhava Sheva matched with Vehicle numbers in ARE-2/ Central Excise Invoice. The CONCOR by letter dated 12.10.2006 confirmed the details of vehicles. The allegation of lack of machinery and absence of manufacturing activity at Job Workers premises at Vasai totally incorrect and unsustainable there is no expert evidence of any Chartered Engineer or otherwise to establish that the machinery found in factory was insufficient for manufacture was undertaken. Verification of manufacturing process in the factory was carried out by the Superintendent and Inspector of Central Excise in their inspection reports. 3. Shri G. Kirupanandan, Learned Superintendent (AR)appearing on behalf of the revenue reiterates the findings of the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturing unit of the job worker and used in the manufacture of exported goods. That the duty paid materials were not used by H.K.Impex or their job workers for manufacture of export goods and were sold by them. 4.1 In the first round of adjudication the adjudicating authority vide order in original dated 31.03.2009 confirmed the charges made in the show cause notice. On appeal filed by the appellant before the Tribunal against the said order the Tribunal s vide order dated 25.06.2014 remanded the matter to the Commissioner for fresh adjudication on certain observations and directions. The Tribunal in it s order observed that the transporters and suppliers of inputs had given statements in their own language to the MVAT Authorities which showed that the duty paid inputs were supplied and transported to and received by the appellant and their job workers and these statements contradicted their statements recorded in English by DGCEI. The Tribunal further held that the report of the MVAT authorities revealed that the job workers had large manufacturing capacity and huge input machinery and had incurred huge electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two job workers of the main appellant have very large Manufacturing capacity have huge machinery for manufacture , and had incurred huge electricity expenditure. We note that the copy of the said MVAT report was not properly appreciated by the adjudicating authority. We also find that the adjudicating authority has nowhere tried to verify from the records of the Deputy/Assistant Commissioner having jurisdiction over the factory of the main appellant to know whether any additional intimations have been filed mentioning the names and addresses of more job workers. The main appellant has placed on record that such additional intimations were actually filed with jurisdictional DC/AC, which may have bearing on the appellant s rebate claims. Due to the above factual contradiction the cross- examination of those persons whose statements are relied upon was obligatory as per the settled position of law indicated in Para 3(g) above. 4.2 After the aforesaid remand by the Tribunal some of the witnesses were made available for cross examination and their cross examinations were conducted. In the de-novo adjudication the Commissioner passed order in original dated 13.03.2018 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Show cause notice and that therefore the said order dated 13.03.2018 cannot stand. The Tribunal accordingly remanded the matter to the commissioner. We find that the Commissioner has a limited scope to pass the de-novo order only on the points that whether he was right in deciding the entire matter on a new ground which was not contained in the Show Cause Notice. Meanwhile, the appellant moved an application before the tribunal wherein the tribunal vide order dated 06.08.2019 clarified that the categorical finding of the Commissioner in order dated 13.03.2018 that the inputs had been duly received by the appellant and sent to the job workers and manufactured final product had been duly received by the appellant from the job workers has not been disturbed by the Tribunal vide its order dated 21.02.2019. In this fact it is further established that the materials were sent to the Job worker and the manufactured goods received by the appellant are not under dispute. The Tribunal further held that the matter was remanded to the Commissioner for him to rectify the error committed by him of conforming the Show cause notice on a new ground not contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns India v CC- 2003 (158) ELT 32 4.5 The appellant also argued vehemently on the entire evidence relied upon by the department in the Show cause notice. However, since after consideration of all the evidences and remand direction when the learned Commissioner in order in original dated 13.03.2018 read with Tribunal order dated 06.08.2019 concluded that the receipt of inputs by the appellant, use thereof at the job workers premises, manufacture of final product and export thereof. Since neither side challenged the finding of the commissioner s order dated 13.03.2018 and this tribunal s order dated 06.08.2019, the finding on the facts has discussed above attained finality. The appellant also raised the issue of jurisdiction of DGCEI whether they are empowered to issue the SCN or otherwise. Since we have decided the matter on merit we are not addressing the issue of jurisdiction. 4.6 However, in the interest of the justice, since the appellant have made a detailed alternative submission dealing with evidences and allegations related thereto in their argument, We, without prejudice to our above independent finding, are now dealing with the submission of the appellant on e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cross-examination. We further find that despite the fact of the inspection report on record no question was raised from the Superintendent and the Inspector who did the verification about the veracity of the inspection report. Therefore, the inspection report given by the officers which clearly established that the goods were received by the appellant cannot be brushed aside. 4.8 It is further observed that the Panchnama dated 27.03.2006 does not record the presence of goods found by DGCEI noted in the File Noting of DGCEI (the details obtained under RTI by the appellant). The said File Noting in the file of DGCEI clearly shows that apart from 16 M Tone of SS Patta/Patti there were other goods lying in the factory viz. 12 Tons of Plates , 19 tons of Plates, 360 kgs of Stock Pots, 360 Kgs of Covers/Small Plates, 190 kgs of Glasses, 6 Tons of unfinished goods , unspecified quantity of SS Coils, 60 Tonnes of finished/unfinished goods and scrap. This very fact was not recorded in the Panchnama therefore, the panchnama relied upon by the Learned Commissioner gets demolished the evidential value of the Panchnama. Therefore, the appellant's dispute on the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. v CCE- 2006 (193) ELT 48 Krishna Steel Industries v CCE- 2010 (254) ELT 292. In view of the above settled position and the facts of the present case the witnesses whose statements were relied upon, since could not be produced for cross examination, their statements have no evidential value and in respect of the transporters whose statements were retracted during cross examination as they have stated that the goods have been received by the appellant and by the Job workers, the entire basis in the SCN which is the statements of the transporters gets demolished. 4.11 The Learned Commissioner also proceeded on the basis that retraction of statements before DGCEI by one of Shri Pawan Kumar Agarwal of Gaurav roadways is after much delay and he has discarded the same as an after-thought. We find that only due to delay it cannot be said there is after thought as laid down in the case of GTC Industries 2006 (198) ELT 121. Once the witness has resiled from his statement in cross- examination, the credibility thereof is eroded and the mere fact that such retraction was after lapse of years does not make the statement reliable. 4.12 The Commissioner also relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not delivered goods at any other place on directions of H K Impex. He also stated that he does not know Saurabh Metals. As regard the statement recorded by the DGCEI, he stated that he was not allowed to read the statement nor was that statement read out to him and only signature was taken. He had signed the statement by trusting the government officer. In the cross examination also, he has retracted the statement given to DGCEI. As per this version of Shri Mangalram Vishnoi statement recorded by DGCEI cannot be taken as evidence to use against the appellant. As regard the reliance on the statement of Shri Rajeshbhai A Muni, Manager of Saurabh Metal Works, we find that the said statement was retracted in cross-examination therefore, no reliance on his statement can be made. 4.15 It is also observed that there is no dispute about entry of goods in question into Gujarat which were supplied by suppliers of Jodhpur which is established by evidence on record. It is also not under dispute that the Central Excise Invoice under which the export goods were removed from the Appellant s factory at Gujarat bears the transport vehicle number. The appellant used packing material which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had very large manufacturing capacity and had a huge machinery for manufacture and had incurred huge electricity expenditure and that MVAT Authority report was not properly appreciated by the Adjudicating Authority. 4.18 As regard the doubt raised about the job worker we note that one Shri Arun Mishra, the Production Manager of Job Workers before the adjudicating authority on 2.7.2015 established that the input sent by H K Impex to the job workers were received by them and used in the manufacture of export product. The same deposition was made by Shri Arun Mishra during his cross examination during the adjudication proceeding. 4.19 The appellant also relied upon the fact that raw material, semi finished goods and finished goods at the appellant s factory premises as well as the job workers premises were hypothecated to the Bank and insured from time to time. We find that this fact also establish that the manufacturing activities were going on in the appellant s factory as well as job worker s factory. 4.20 We also note that it is a surprising fact that DGCEI did not record any statement of the appellant s Managing Director Shri Deepak Agarwal despite giving him various ..... X X X X Extracts X X X X X X X X Extracts X X X X
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