Page 280 - ELT_15th June 2020_VOL 372_Part 6th

926 EXCISE LAW TIMES [ Vol. 372
Demand (Contd.)
the Customs is an exercise of power in excess of jurisdiction - Section
28(4) of Customs Act, 1962 - Rules 25 and 26 of Central Excise Rules, 2002
— Rajhans Impex Pvt. Ltd. v. Union of India (Guj.) ..................... 346
— C.B.E. & C. Circular No. 83/83/94CX., dated 31-12-1994 clarifying that
addition of Methanol or Ethanol to Motor Spirit, does not amount to
manufacture, effective, Draft Circular Instructions F.No. 84/04/2007-CX
which intended to withdraw C.B.E. & C. Circular No. 83/83/94-CX.,
dated 13-12-1994 being never issued as a circular, cannot be relied upon -
Matter needs to be given a relook by considering the various alternative
submission made by appellant and remanded to Adjudicating Authority
- Section 11A of Central Excise Act, 1944 — Reliance Industries Limited v.
Commr. of C. Ex. and Service Tax, Rajkot (Tri. - Ahmd.) ................... 414
— Cenvat credit - Credit utilized for payment of duty on final product -
Revenue’s case that the goods manufactured by appellant are exempted
from duty therefore, not entitled to Cenvat credit - In view of the decision
reported in 2013 (294) E.L.T. 203 (Bom.), when activity not amounts to
manufacture, the payment of duty shall be the amount of reversal of
Cenvat credit - So, demand not sustainable — Commr. of C. Ex. & Service Tax,
Jammu & Kashmir v. Gravita Metals (Tri. - Chan.) ...................... 172
— Clandestine removal and undervaluation - Third Party Evidence - Said
demand has been confirmed only on basis of certain loose slips/pages
resumed from third party i.e. consignment agent - No reliance can be
placed on these loose sheets as name of appellant is not mentioned on
them - Further, statement of said consignment agent also not reliable
evidence in absence of his cross-examination in terms of Section 9D of
Central Excise Act, 1944 - No independent investigations conducted from
buyers of finished goods whose name allegedly appeared in these loose
sheets - In absence of corroborative evidence, no reliance can be placed
on third party evidence - Impugned order not sustainable - Section 11A
of Central Excise Act, 1944 — Synergy Steels Ltd. v. Commissioner of Central Excise,
Alwar (Tri. - Del.) .................................... 129
— Clandestine removal - Evidence - Section 9D(1) of Central Excise Act, 1944
- Extent and applicability - Not a provision vouched in a ‘negative sense’
to hold that statement given by person concerned shall not be acceptable
in evidence for the proceedings concerned - Fixation of duty evaded is
one thing and mulcting of penalty for offence in respect of such evasion
is different thing — N.R. Sponge Pvt. Ltd. v. Commissioner of Central Excise, Raipur
(Chhattisgarh) ...................................... 321
— Clandestine removal of goods - Evidence - Incriminating materials
retrieved from premises of assessee during inspection and physical
verification of stock reflected shortage of goods - Finding rendered not
solely with reference to contents of some ‘loose sheets’ recovered from
premises of assessee but on the basis of other incriminating materials
traced out and the statements given by different persons including
Director/Shift Supervisors/Accountant/ Cashier/Transporter and
Brokers/Commission Agent, compared and analyzed with reference to
records/materials seized/recovered - Thus finding rendered on the basis
of facts and evidence on record concurring with finding of adjudicating
officer and Appellate Authority is not liable to be interfered by High
Court in exercise of power under Section 35G of Central Excise Act, 1944
- No specific case for the appellant-assessee before the Adjudicating
Authority or before Commissioner (Appeals) or Tribunal that the
statement was obtained under ‘duress or coercion’ from Director or from
EXCISE LAW TIMES  15th June 2020  280