9911796707
TMI Blog2025 (1) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken, which is not distputed. Therefore, both the issues of drawal of samples as well as test needs to be amply clear before the charges can be further corroborated. From the perusal of the Order, both these aspects have not been dealt with adequately by the Adjudicating Authority. More so, when cross examination of the Chemical Examiner has been denied, it would definitely tantamount to denial of natural justice, in the facts of the case. Said Test Reports are the major evidence based on which the allegation of increasing concentration has been made by the Department and categorically holding that manufacturing process has been undertaken on ROM ore. There is also some fact in appellant's contention that quantification of denial is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examining certain officials of the company felt that they are engaged in "manufacture of manganese ore concentrate". It was also noticed that appellants were not paying any Central Excise Duty on said Manganese Ore Concentrate (hereinafter referred to as Concentrate). >2. The Department, relying on the explanatory note of HSN read with Chapter Note 4 to Chapter 26, felt that the activities undertaken by the appellant on their Run of Mine (ROM), manganese ore would lead to the concentration of the ore and therefore having regards to the HSN explanation and Chapter Note, these processes are to be treated as concentration process and therefore by virtue of deeming provision of Chapter Note 4, the said process will amount to manufacture. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the retracted statement. He has relied on the judgment of Shrishail Nageshi Pare Vs State of Maharashtra [1985 (2) SCC 344] to come to the conclusion that no corroboration for retracted version of the statement is available, hence retraction is not to be taken into consideration. Further, he has also responded to the contention regarding collection of sample by observing at para 29 that the procedure followed by the Department is systematic and in accordance with law. >4. Learned Advocate for the appellant, interalia, mainly submits that the process undertaken by them would not amount to manufacture as alleged by the Department. He further submits that notwithstanding whether it amounts to manufacture or not, since these activities w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records. Further, since the issue is common, in all these orders, we are deciding the same, by way of a common order. We take up all these orders, by way of common order. >7. The issue, in brief, is whether the activities undertaken by the appellant in respect of certain quantity of ROM manganese ore would result into manufacture of concentrate or otherwise. The Department has mainly relied on 3 facts, which are as follows: >i) The statement of Shri B.K. Nashim, who, interalia, has explained the activities undertaken by the appellant on the ROM manganese ore; namely breaking of ROM ore into small pieces, shifting the same to vibrating screen through conveyor belt, screening, manual picking of unwanted material, etc. >ii) The t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate has pointed out including the entitlement of benefit of Notification no. 63/95-CE, in the event it is held to be a manufacturing process. >9. In view of the same, we find that in the interest of justice, the matter should be remanded back to the Original Adjudicating Authority, who shall re-hear the matter after allowing the cross examination of the Chemical Examiner, whose test reports have been relied in the show cause notice and Order-in-Original. The Adjudicating Authority shall also analyse in detail the process of drawal of samples and explain as to whether it was done in accordance with the Test Manual prescribed under the Customs Law or any other prescribed procedure followed by Department and also if there was any breach of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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