TaxTMI 
TaxTMI 
2017 (6) TMI 1134
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....passed by Commissioner of Central Excise & Customs Ghaziabad. Therefore, these appeals are taken together for decision. 2. The brief facts of the case are that M/s Hilite Industries Pvt. Ltd. (hereinafter referred as 'M/s Hilite') were engaged in the manufacture and clearing of two categories of CAF (Compressed Asbestos Fibre) Jointing Sheets falling under Chapter Heading No.68.05 of the Schedule to Central Excise Tariff Act, 1985. M/s Hilite was availing SSI Exemption under Notification Nos.5/1999-CE dated 28/02/1999, 6/2000-CE 01/03/2000, 3/2001-CE dated 01/03/2001 & 6/2002-CE dated 01/03/2002. Under said Notification No.5/1999-CE dated 28/02/1999 the goods manufactured by M/s Hilite were covered by Serial No.179. The said noti....
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.... of the Central Excise Act, 1944. Further, there was proposal to impose penalty under Rule 209A of the Central Excise Rules, 1944 read with Rule 26 of the Central Excise Rules, 2001/2002 on Late Shri A. B. Sharma, Smt. Sudha Sharma, M/s New Delhi Minerals & Chemicals & M/s JSR International. The said Show Cause Notice was decided through Order-in-Original No.19/Commissioner/Ghaziabad/2007 passed by the Commissioner of Central Excise, Ghaziabad dated 29/03/2007 which was challenged before this Tribunal. This Tribunal decided through Final Order No.454-458/2007-EX dated 09/08/2007 found that on 06/03/2007 three witnesses were cross examined by M/s Hilite and thereafter the said Order-in-Original dated 29/03/2007 was passed and no opportunity ....
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....RCL. Further, on 22/09/2003 CRCL asked the Jurisdictional Superintendent to provide the composition of raw material. Further, on 06/10/2003 CRCL again asked the department to provide the sample of raw materials and the quantities of raw materials used in manufacture. On 13/10/2003 samples of raw materials such as Fly Ash & Phospho Gypsum were drawn by Jurisdictional Superintendent. He, further, stated that on 11/10/2004 CRCL returned the samples untested informing that it was not possible for the lab to determine the raw materials consumed. He, further, contented that the Jurisdictional Officer though took the samples of raw materials, but there is no evidence if the same was sent to CRCL as requested by CRCL in its earlier letter. He, furt....
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....ance. The said opinion issued on 17/09/2007 is stated in Para 4.22 of impugned Order-in-Original dated 15/05/2009 and it was held that the report of Dr. Badri Prasad to the extent that it contained presence of Phospho Gypsum more than 25% by weight being based on only assumption and need not be relied upon. He, further, contented that the said opinion given by Dr. Badri Prasad was not on the basis of assumption but it was based on the chemical analysis of Phospho Gypsum and that of the final product conducted by Sriram Institute of Industrial Research and test report dated 09/01/2004 & 27/08/2003 issued by said Sriram Institute of Industrial Research. He has further contended that the entire investigation and finding of Original Authority i....
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....s not used whereas there was no discussion on Fly Ash at all in the whole proceedings. Further, we find that Original Authority in Para 4.22 has held that opinion by Dr. Badri Prasad through letter dated 17/09/2007 was only an assumption which gives an impression that the Original Authority has tried to examine technical opinion without seeking any technical opinion from the competent wing of the Department i.e. CRCL. We are of the opinion that this matter needs to be remanded back to the Original Authority with a direction that the said Original Authority should refer said opinion dated 17/09/2007 given by Dr. Badri Prasad to CRCL and seek expert technical opinion about the correctness of opinion given by Dr. Badri Prasad and on the basis ....