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TMI Blog2023 (9) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... arious units located in their jurisdiction who were purchasing Menthol Solution and Dementholised Oil from units based in Jammu & Kashmir. The premises of various commission agents and buyers as well as sellers of Menthol Solution & DMO were searched by the officers of Meerut Commissionerate and it was found that commission agents are neither maintaining proper record of sale of raw material nor purchased the raw material. The commission agents had issued Kissan Kharid Patra to various farmers whereas the investigation conducted at the end of farmers indicated that the farmers were either non-existent or had not supplied/sold the same. On the basis of investigation at the end of commission agents and farmers, it was concluded that units based in J&K based were not purchasing any raw material and issued only invoices showing clearance of the said goods without actually manufacturing and clearing the same to UP based manufacturers. Show cause Notices were issued by the Meerut Commissionerate to UP based manufacturers to deny cenvat credit availed on goods purchased from J&K based suppliers. On the basis of investigations conducted by the Meerut Commissionerate and the investigation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to be demanded by invoking the extended period of limitation. He further submitted that the Ld. Commissioner has wrongly confirmed the demand only on the ground that the appellant could not give any evidence to the effect that there was any alternative source of electricity generation because in the region of the appellant there were power cuts to the extent of 10-12 hours. He further submitted that the Ld. Commissioner in the impugned order itself has admitted that the buyers of the goods are available and the appellant has produced the evidence to the effect that the goods were duly entered at the Lakhanpur Toll Post. He further submitted that all the submissions have not been considered by the Ld. Commissioner while passing the impugned order. He further submitted that the issue arising out of the same investigation is no more res-integra and has already been decided by the Tribunal in the following cases:- * M/s Arora Aromatics (In Appeal No.E/1654/2010) Versus Commissioner of Central Excise, Meerut-II vide Final Order No.71939-71959 of 2017 dated 01.11.2017 decided by the Tribunal, Allahabad. * M/s Nanda Mint & Pine Chemicals Ltd. Versus CC, Chandigarh- II vide Final O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order is solely issued on the basis of presumption and assumption and no investigation whatsoever has been undertaken at the end of the appellant to come to the conclusion that the said goods were not manufactured by them. He also further submitted that it is on record that some of the manufacturers who had supplied the goods to the appellant had even been visited by the Preventive Department during the period in dispute not once but many times and even their stock had been verified. If no manufacture was being undertaken by the supplier of raw material then it is not understood as to how and what was verified by the Preventive Department. He further submitted that even the Commissioner of Central Excise, Jammu vide his report dated 25.02.2010 had categorically stated that it cannot be strongly alleged with certainty that the said units have not manufactured menthol oil. Ld. Counsel took us through the relevant portion of the report of the Commissioner of Central Excise, Jammu which is reproduced hereunder:- "5. Thus the officers of Merrut-Il Commissionerate instead of selecting the consignments where no excisable goods were manufactured/supplied, have generalized that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that the identical issue came up in the case of M/s Jellalpore Tea Estate cited Supra wherein it has been clearly held that the benefit of the notification cannot be denied and demand issued under Section 11A for the refund when there is no challenge to the refund order passed by the Adjudicating Authority. He further submitted that impugned order is even otherwise against the principle of natural justice as no opportunity of cross examination has been provided by the Adjudicating Authority on the statement of persons on whom reliance has been placed despite the appellants having asked for the same. The statements cannot be relied upon in the absence of cross examination of the persons whose statements have been relied upon in the show cause notice. As per the Ld. Counsel, this view has been held by the Hon'ble Punjab and Haryana High Court in the following cases:- * Jindal Drugs Pvt. Ltd. Versus Union of India reported as 2016(340) E.L.T. 67(P&H) * Synergy Steels Ltd. Versus Commissioner of Central Excise, Alwar reported as 2020(372) E.L.T. 129( Tri-Del) 7. On the other hand, the Ld. DR reiterated the findings in the impugned order and submitted that two decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that no statements of the transporters have been recorded. It is pertinent to note that the refunds have been sanctioned by the adjudicating authority but the department has not challenged the same till date and as per the decisions relied upon by the appellant cited (supra) it has been held by various Courts that in the absence of challenge of the refund order, the demands cannot be made from the appellant. 12. We also find that the impugned order passed without affording an opportunity of cross examining the witnesses in spite of the request made by the appellant for cross examination of the witnesses and in the absence of cross examination, their statements cannot be relied upon as held by the Hon'ble Punjab and Haryana High Court in the case of Jindal Drugs cited (supra). Here, we would like to reproduce the findings of the Tribunal in the case of Neeru Enterprises & Ors. Vs. CCE,Chandigarh-II vide Final Order No. 60368-60373 of 2019 dated 02.04.2019 which is recorded in Para 10 to Para 12 as under:- "10. We further take note of the fact that, the investigation was not conducted at the end of the appellants and whole case has been based on the investigation conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate Merrut-II." 11. We further take of the fact that the similar issue on identical facts came up before this Tribunal in the case of Nanda Mint and Pine Chemicals Ltd. (Supra), wherein this Tribunal observed as under: " 6. We find that in this case the sole allegation against the appellant is based on the investigation made by Commissioner of Central Excise, Merrut, and as per the investigation, it is alleged that farmers from whom the inputs were purchased were nonexistence. Therefore, commission agents never supplied inputs to the appellant and the appellant did not manufacture the goods. Consequently, they have not sold the goods and it was alleged that the appellant has not manufactured the goods at all. 7. We take a note of the fact that the check post movement of trucks which were carrying inputs as well as finished goods were found entered. We further take note of the fact that the appellant has produced the evidence of the entry of all the transport vehicles i.e. trucks which have entered in the state of Punjab and have left the state of Punjab, as the same has been certified by the Punjab Sales Tax Department having entries of entry and exit all the vehicles, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the investigations conducted by the Central Excise Commissionerate Merrut-II." 9. The said report also support the case of the appellant wherein it has been clearly mentioned that during the periodical checks by the departmental officers, the appellant found manufacturing the goods. Moreover, no discrepancy was found and on toll barriers it was found that the vehicles carried inputs/finished goods found entered. Moreover, the District Centre also certified the said fact. 10.We further take note of the fact that the various other departments namely Pollution Control Department, District Industries Department, Electrical Department have visited the factory of the appellant and found functioning. All these facts have not been disputed by the Revenue. As there is no corroborative evidence to show that the appellant were not manufacturing the goods, therefore, the allegation alleged in the show cause notice is not sustainable. 11.We further take note of the fact that on the basis of the same investigation conducted by the Commissioner of Central Excise, Merrut, the case was booked against the various parties namely M/s Arora Aromatic & Others Vide Final Order No. 71939- 71959/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to discard by saying that the Officers have not seen the goods being manufactured by their own eyes. Further, the receipt of inputs was verified by the Officers of Central Excise Department and sample of the same were also drawn and forwarded for Chemical Examination. Such evidence was also not accepted by the Original Authority, Therefore, it appears that the Original Authority was pre-determined to adjudicate the matter in the manner in which he has decided the issue and he was not just and fair and did not discharge his duty as an independent adjudicator. We, therefore, set aside both the impugned Ordersin-Original dated 29/01/2010 & 29/03/2011 and allow all the appeals filed by appellant. The appellant shall be entitled for consequential relief. All the demand and penalties imposed are also set aside. All the Miscellaneous/Stay Applications stand disposed, as infructuous." 12. In view of the above observations, we hold that without bringing any concrete evidence against the appellant on record, the proceedings against the appellant are not sustainable, therefore, the show cause notice issued to the appellant is only on the basis of the assumption and presumption and investig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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