TaxTMI 
TaxTMI 
2018 (1) TMI 467
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....lling Pvt. Limited (GRPL), Shahdara, Delhi have diverted copper cathodes (inputs) to M/s JMW India Pvt. Limited (M/s JMWIPL), Jammu, during the period in dispute being 2006-07 and 2007-08. Further, copper scrap purchased from market without bills was utilised by JVIPL for their own use and further JMWIPL obtained fake purchase invoices of copper scrap from various scrap dealers to balance their records and the said purchase transaction was rejected by the Id. Commissioner. Based on the aforementioned allegation different show cause notices were issued and the demands were confirmed on contest as follows: On JMW (1) Pvt. Ltd., Jammu Order in original No. JNK/CEX/035/COM/2012 dt.10.01.2013 Show cause notice dated 02.06.2011 Period of dispute May 2006 to March 2008 Demand Rs.15,52,75,241/- Penalty Rs.15,52,75,241/- Issue The duty demand has been confirmed on the ground that M/s JMWIPL had received copper cathodes from M/s J.V. Industries Pvt. Ltd. and M/s Ganpati Rolling Pvt. Ltd. instead of copper scrap on which they could have availed cenvat credit. Non-availment of cenvat credit has resulted in excess refund to the extent of the du....
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....ice dated 30.12.2008 was issued, wherein it was proposed to deny cenvat credit on nickel. The said issue, pursuant to remand by this Tribunal, is pending before the Adjudicating Authority. 3. The Anti-Evasion Officers again visited the unit of JVIPL and GRPL on 08.07.2010 and the panchnama was drawn. Statement of the said Shivji Gupta, Production Manager was recorded on 30.08.2010 wherein he stated that they have used copper cathodes in the manufacturing of copper ingot which was at variance with his earlier statement dated 26.03.2008. However, relying upon his earlier statement and based on certain other inquiries, a show cause notice was again issued on 11.11.2010 alleging that GRPL had fraudulently availed cenvat credit on 824.583 MT of copper cathodes during the disputed period and wrongfully availed cenvat credit to the tune of Rs. 4,63,09,268/-. Further, JVIPL also fraudulently availed cenvat credit on 1959.387 MT of copper cathodes during the disputed period, being cenvat credit of Rs. 11,25,28227/-. It was further alleged that the said copper cathodes were clandestinely diverted by them to their sister concern M/s JMWIPL, Jammu. The proposed disallowance of cenvat credit....
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....sued on 30.12.2008 which was for denial of cenvat credit on nickel. The said denial of cenvat credit on nickel was confirmed by the Id. Commissioner. The said order was challenged by JVIPL before the Tribunal, and this Tribunal allowed the appeal by way of remand vide Final Order No.A/52510-52522/2015 dated 06.08.2015 on the grounds of violation of Principles of Natural Justice. 6. In the second statement dated 30.08.2010 of Sh. Shivji Gupta, wherein he categorically stated that JVIPL is manufacturing copper ingot by using copper cathodes. He also stated that JVIPL was technically fit to manufacture copper ingots by using copper cathodes. 6.1. Also stated that they have undertaken job work for manufacturing copper ingots on behalf of GRPL during the disputed period. Ld. Commissioner have erred by selectively relying on totally unconnected statement dated 26/03/2008 of Shivji Gupta, in preference to his latter statement dated 30/08/2010, wherein he had categorically stated that copper cathode were used in the manufacture of copper ingots, by JVIPL. Nowhere in the show cause notice, it has been alleged that the contents of the said statement of Shri Shivji Gupta dated 30/08/201....
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....sioner further ordered that the threat and beating is a plea taken by way of afterthought to avoid legal consequences. This finding as per the appellants is wholly untenable and contrary to the settled position of law. It has to be appreciated that statement which is recorded under Section 14 of the Act, during investigation and enquiry is not sacrosanct and is subject to examination as provided under Section 9D of the Act, which mandates that a statement can be accepted in evidence only after examination of the witness during the proceedings. The learned Commissioner failed to examine or re-examine Sh. Shivji Gupta during the adjudicating proceedings and therefore the obvious conclusion is that he had accepted the veracity of his statement during the cross-examination. The ld. Commissioner in order to get over the statement of Sh. Shivji Gupta made on 30/08/2010 and his cross-examination, have observed that the said statement was a tutored one. This finding is wholly perverse, as firstly, there was no such allegation in the show cause notice and secondly the statement dated 30/08/2010 was also recorded under section 14 of the Act. Further, during cross-examination Sh. Shivji Gupta....
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....mu, which was not situated within the jurisdiction of Central Excise Commissioner Delhi-II was wholly without jurisdiction. 11. The fact that JMWIPL Delhi (Trading company) was transferring copper scrap and copper cathode to their factory at Jammu, is evidently clear from detailed statement recorded of the proprietor of 'Kanpur Kashmir Roadway', Delhi, Shri Manoj Kumar Yadav, who in his statement dated 11/08/2010 have categorically stated that they were transferring both copper cathode which were shifted to the trucks with the help of chain pulley lifter and copper scrap which used be placed in the gunny bags which were loaded in the trucks by Labour. He was specifically asked whether he could identify the premises or godown of JVIPL to which he answered yes. He was further asked whether it was possible that the goods transported by the transport company were actually loaded from the premises of JVIPL. In answer, he categorically stated that it was not possible. He categorically stated that they used to load goods from JMWIPL Delhi, and did not load any goods from JVIPL. It is not disputed that all the consignments, which were transported from Delhi to Jammu were through....
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....hode from M/s Hindalco industries and M/s Sterlite industries Ltd. Further, the report of Commissioner, Jammu also states that the District Industry Center (DIC) authorities were regularly visiting the unit, and verifying the purchase of raw materials. All such verifications were duly recorded by DIC authorities in the raw material register maintained by JMWIPL, Jammu, which was known as import register. The Id. Commissioner in the impugned order have erred in ignoring this crucial evidence which clearly proved that JMWIPL, Jammu was also receiving copper scrap directly on own purchase. Further the allegation in the show cause notice. that JMWIPL, Jammu have shown/ recorded false purchase of copper scrap from various dealers, amounts to mis-rejoinder of charges and that was not the issue, which was related to JVIPL and GRPL. Further, the issue of mis-rejoinder of charges is also proved from the fact that it has never been the case of the Department that copper scrap which was purchased by JMWIPL, Delhi or copper scrap which was purchased by JMWIPL, Jammu from the open market was diverted to the premises of JVIPL. Further without there being any manner of concern as regards copper s....
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....er. The appellant had further disputed the statement of Sh. V. K. Mittal and stated that they were using copper cathode ranging from 2MM to 3 MM, which could be cut by the hand cutter. Further JVIPL had taken a stand that no pilot experiment was done as to whether they were cutting copper cathode into two-three pieces and thereafter the same was fed into the furnace to manufacture copper ingots. The appellant had given a proposal during the adjudicating proceedings that a pilot experiment may be conducted. But the said request was not granted, nor rejected in the impugned order. Further, the appellant JVIPL also brought on record a Chartered Engineer's certificate dated 11/10/2011. A copy of which is available in the appeal paper book, wherein the said Chartered Engineer, after paying visit to the factory of JVIPL have categorically stated the process of manufacture of copper ingots, by using copper cathodes as raw material. He also stated that copper cathode were cut in his presence with the two cuts each, making the same in three pieces of approximately 330 x 990 MM size. The learned Commissioner ignored the report of the Chartered Engineer, without assigning any reason. Thus....
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....d. Dealer at Delhi Manufacturing Unit in Jammu Sushil K Jain & Manoj Jain (Father & Son) 18. Mr. Shivji Gupta the - Production Manager of JVIPL in his statement dated 26/03/2008 had admitted that they only used copper scrap (procured from local sources without any bill) in production of copper ingots. He further in his statement stated that copper cathodes (size 2.5' x 3') received in the factory were never cut as they did not had any cutter and in some instances where melted by placing above the furnace. Further in his statement on 26/03/2008, he had stated that no nickel was used for production of any alloy ingot since February, 2007. He had issued instructions to show issuance of nickel as per directions of Shri Sushil Jain and Shri Vinod Kumar Jain, since there was balance of nickel in the records. Whereas nickel was not physically available. Also stated that they did not use nickel nor manufactured CuNi ingots during 2005 - 06 to 2007 - 08. Further stated that they had not use any metal other than copper scrap. That most of the cathodes where diverted without any invoice from JVIPL, but on invoices of JMWIPL - trading unit, to JMWIPL manufacturing unit at Jammu after....
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....o (2411.099 MT valued at Rs. 83,73,69,279/-) and Sterlite. Under their letters 93.046 MT valued at 323.05 lakhs, were returned to Hindalco on 02/06/2007, since cathodes are not as per specifications. No electric cutter was available in factory, nor they got the cathodes cut from outside. Hand cutting of such quantity of cathodes appeared not feasible. Without cutting of the large cathodes, they could not have been fed in furnace. 22. JMWIPL - trading unit was situated in the adjacent premises to JVIPL, During April 2006 to March 2008 - showed purchase of 2380.445 MT of copper scrap and copper cathodes (rejects), from six Rajasthan-based suppliers. All material was sold to Jammu unit on trading invoices, without Cenvat. Further, 22 consignments of 4235.278 MT copper scrap from Ganesh Enterprises, Jaipur did not indicate any vehicle number. Most of the purchase invoices/GR's bear no stamp of any check post/ toll. Out of 248 invoices, only five trucks crossed NHAI toll at Manoharpur. Out of 52 invoices originated from Bhilwara non-crossed the toll at Manoharpur. The trading firms/ suppliers of copper scrap were not found in existence at the given address. These trading firms we....
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....er scrap/ cathodes from non-existing firms and sold to Jammu unit which is equivalent to 2411.99 MT of copper cathodes purchased by JVIPL during 2006 - 07 and 2007 08 from Hindalco/ Sterlite. Further GRPL showed purchase of 775.212 MT of cathodes from Hindalco. Jammu unit has shown purchase of scrap of 677.944 MT from Ganpati sales Corporation and Bharatiya trade linkers, Delhi - both non-existent. 24. M/s. Kanpur Kashmir Roadways, only transported goods from trading unit at Delhi and Hindalco to Bhiwadi. Mr Manoj Yadav, proprietor of the transport admitted to have given GR book to trading unit and that copper cathodes were shifted from trucks coming to the address of godown of trading unit located adjacent to JVIPL premises. That bills of trading unit and GR issued by person of trading unit, used to be sent with this trucks to Jammu unit. That he never loaded any goods from the non-existent traders. The trading unit did not purchase cathodes from Hindalco. Thus, it appeared that the cathodes shifted to such trucks were those purchased by JVIPL/GRPL. Further, purchase of cathodes by the trading unit of JMWIPL were from non-existent firms. 25. Report received under letter date....
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....n by the Revenue or learned Commissioner during the cross-examination that SG is telling lies at the instance of directors of the appellant companies. In his subsequent statement as well as during cross-examination SG stated that JVIPL have used copper cathode for manufacture of ingots. This statement of fact prevails in view of the provisions of Section 9D of the Central Excise Act. We further notice that the learned Commissioner have selectively relied upon the statement of SG, which is against the provisions of law. We further notice that SG in his earlier statement dated 26/03/2008 had stated that he had done the entire work (diversion of copper cathodes) on the instruction of the directors namely Shri Sushil Kumar Jain, Shri Vinod Kumar Jain and Shri Manoj Kumar Jain. No statement was ever recorded either of Sushil Kumar Jain or Manoj Kumar Jain. Although statement of Vinod Kumar Jain was recorded on 11/04/2008, subsequent to recording of statement dated 26/03/2008 of SG, but he was never asked about the diversion of copper cathodes. He was not even confronted with the statement of SG. We further hold that in the facts and circumstances, No reliance can be placed on the uncorr....
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.... rejected copper scrap and copper cathode during the period, from six firms located in the State of Rajasthan and two firms located at Delhi. The learned Commissioner without proper enquiry held-firms were fake or sham firms as they were not found in existence during investigation. We observe that there is no co-relation with regard to copper scrap/ cathode purchased from the trading firms by JMWIPL, with availing of Cenvat credit by JVIPL and GRPL on the copper cathode source from Hindalco and Sterlite. We further notice that the Commissioner Delhi, having jurisdiction over JVIPL and GRPL, had written to Commissioner Jammu, having jurisdiction over JMWIPL factory to probe the affairs of JMWIPL. In response to such letter dated 09/04/2010. The Commissioner Jammu wide enquiry report dated 24^th May, 2010 have given a detailed report stating that the Jammu unit was having instruments/ machinery to melt copper scrap, copper ingots and copper cathode. It is further stated that Jammu unit had purchased and received copper scrap from open market and the same was also/ transferred from JMWIPL - trading unit Delhi. Commissioner Jammu have nowhere stated that the Jammu unit received any qua....
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.... rod manufactured would not be of oxygen free quality, and the purity of such copper rods will be of lower grade depending on the quality of scrap used. 32. We are therefore of the view that findings of the Id. Commissioner on the above issue are not sustainable. We further find that JVIPL had purchased copper cathodes to the extent of 2380.445 MT from Hindalco Industries Ltd. and Sterlite Industries Ltd. during the disputed period for which they had paid Rs. 83,15,35,957/- through banking channels. That out of the said quantity they cleared 453.576 MT copper cathode as such and remaining Quantity i.e. 1959 MT was used in the manufacture of copper ingots. Similarly GRPL had purchased a quantity 824.583 MT of copper cathode from the same suppliers for which they have made payments to the extent of Rs. 2,85,40,497/- through banking channels during the disputed period. This Quantity was sent for conversion into copper ingots on job work basis. It is seen that no evidence has been brought on record to prove that there has been any flowback of cash to them. We agree with these submissions of the learned counsel both JVIPL and GRPL. We also agree with the contention of the learned cou....
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....ls on merits, we leave the issue of time bar, open. JMWIPL 37. The proceedings against JVIPL. GRPL and others were initiated vide show cause notice dated 11-11-2010. In this show cause notice JMWIPL was also made a co-noticee, proposing penal action against them under Rule 26 of Central Excise Rules, 2002. Whereas another show cause notice 02-06-2011 was independently issued to JMWIPL more or less issued on the identical grounds. 38. Even relied upon documents of show cause notice dated 30-12-2008 and 11-11-2010 to JVIPL and GRPL, are part of this show cause notice. The only distinction is that in the show cause notice dated 11-11-2010 there was a proposal to deny Cenvat Credit on copper cathodes to JVIPL and GRPL, whereas in the show cause notice issued to the JMWIPL, it has been alleged that the appellant had indulged in receipt of copper cathode which were diverted by JVIPL and GRPL, by showing the same as copper scrap in their records, only to avoid taking of Cenvat Credit on the said copper cathodes with an intent of availing of erroneous refund under Notification no.56/2002-CE dated 14-11-2002, The duty has been calculated in para 17 of the show cause on the premise ....
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....ires against JVIPL and GRPL. However, neither JVIPL/ GRPL nor JMWIPL were confronted with any such evidence which was straightway relied upon in the show cause notice dated 11-11-2010 issued to JVIPL and GRPL. Subsequently this very allegation was bodily lifted and pasted in the show cause notice dated 02-06-2011, issued to JMWIPL-Jammu. The enquiries which were conducted against JMWIPL Jammu, were with regard to technical aspects only, as can be seen from para 15.17 of the show cause notice dated 02-06-2011. The statutory records of JMWIPL clearly showed that they were regularly receiving and issuing both copper cathodes and copper scrap as their raw material, the genuineness of which could not be questioned without conducting any independent inquiry. 39.6. He relied upon the enquiry report dated 24-05-2010 of the Commissioner of Central Excise, Jammu, who after making thorough enquires, categorically informed the Commissioner of Central Excise, Delhi-II, that JMWIPL Jammu, were receiving both copper scrap and copper cathodes and having necessary infrastructure/ machinery to melt copper scrap, copper ingots and copper cathodes. The allegation of Delhi-II Commissioner, that plan....
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.... enquires were also conducted from the banks, as all the payments were made to the scrap dealer(s) through the banking channels. 39.11. That, all the trucks were duly checked at the sales tax check post at Lakhanpur, J&K. No discrepancy was ever found in the description of the goods at the check post except in one case. Even in that case the Appellate Commissioner of Trade Tax had decided the issue in their favour. 39.12. That, the provisions of para 2C(g) of Notification 56/2002-CE were not applicable of the facts of the present case as in the present case they had not availed the cenvat credit. The provision of the said para is applicable only when credit is available to a manufacturer but he does not take the same. In the present case since no credit was available to them on rejects copper cathode, hence question of its utilization did not arise. 39.13. That, the refund claims were duly sanctioned by the Assistant/ Deputy Commissioner of Central Excise, after due verification that copper scrap was used in the manufacture of finished goods. The said orders were of appealable nature. The department never reviewed the sanctioning of the refund claim by the Assistant/ Deput....
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....n the allegations levelled in the show cause notice to JVIPL and GRPL, Delhi and the show cause notice 02-06-2011 to JMWIPL, Jammu, is that, in the former there was proposal to deny Cenvat Credit on copper cathode on the ground that the same was diverted to JMWIPL Jammu, whereas in the later show cause notice there was a proposal to deny the benefit of Notification No.56/2002-CE dated 14.11.2002, on the ground that JMWIPL had received diverted copper cathode from J VIPL and GRPL Delhi, whereas they had shown receipt of copper scrap in their records only to avoid taking of Cenvat Credit on the said copper cathodes with and intent of availing of erroneous refund under Notification No.56/2002-CE dated 14.11.2002. Hence the duty was demanded under Para QC (g) of Notification No.56/2002-CE and Section 11A of the Central Excise Act, 1944. In this case the department has demanded the same amount which was availed as cenvat credit, both by JVIPL and GRPL during the financial year 2006-07 and 2007-08. 42. That we have already held while dealing with the appeal filed by JVIPL and GRPL and others, that there was no credible evidence on record that JVIPL and GRPL had diverted the copper cat....
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....been observed in this report that on arrival of each consignment of raw material in the unit of M/s JMWIPL, they were informing the DIC Jammu and such authority had been regularly visiting the unit and verifying the purchase of raw material. All such verifications are duly recorded by DIC authority on the Raw material Register maintained by M/s JMWIPL. Statement of Sh. Manoj Kumar Yadav Prop. of the transporter was recorded 06.05.2010 wherein he inter alia stated that whatever description of the goods was given on the GRs was correct. They had been mainly transporting copper scrap and bundles of copper ingots. Statements of two drivers Sh. Tarsem lal and Chanchal Singh, both employees of the transporter namely Kanpur Kashmir Roadways were also recorded on 06.05.2010 who stated that the goods which were loaded in the vehicles were as per the GRs. 48. We note that the Commissioner in the impugned order has not accepted this enquiry report on the ground that it was based upon the records which were being maintained by JMWIPL, Jammu. According to him their records were falsified and this fact was not in the knowledge of the then Commissioner. He has also relied upon a letter of Depu....
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....06 and that they were using copper cathode/ scrap as their raw material for producing copper rod, since the inception of the manufacturing unit at Jammu. The officers did not enquire from JMWIPL whether they had received any diverted quantity of copper cathode from JVIPL and GRPL. They also did not make any enquiry about alleged non-receipt of copper scrap into their factory. Neither Sh. P. K. Saxena nor Sh. Vishal Sharma were confronted with the evidence which was gathered by the officers of Delhi -II Commissionerate relating to alleged fake purchases of the copper scrap by them, during the period 2006-07 and 2007-08. The investigating officers also did not doubt the receipt of copper scrap which was duly shown in the statutory records of JMWIPL. 50. We further find that the Commissioner of Central Excise, Jammu in his enquiry report dated 24.05.2010 had categorically observed that during investigation it was found that M/s JMWIPL Jammu had the necessary infrastructure/ machinery to melt copper scrap/ copper ingots and copper cathodes. This portion of the enquiry report has not been doubted or questioned by the Commissioner in the impugned order. 51. The Commissioner in the ....
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....d be of lower grade depending of the quality of scrap used. We find that from the cross examination it is evidently clear that plant and machinery installed at JMWIPL Jammu was capable to melt copper scrap apart from use of copper cathode. This is also corroborated by certificate dated 18.10.2011 from Chartered Engineer Sh. R.K. Aggarwal, who visited the unit on 12.10.2011 and opined that the plant installed by them was capable to use copper scrap, but stated that it was always better to either use only copper cathode or add the copper scrap with copper cathode in appropriate ratio. We are of the considered view that the if the department was of the view that the plant and machinery installed by M/s JMWIPL Jammu was not capable to use or melt copper scrap as one of the raw materials, it was incumbent upon it to have brought on record technical or expert opinion. Capability to use scrap is also certified by certificate dated 16.11.2011 from the manufacturer of the plant' China International Limited' Hongkong, wherein they have certified that plant of JMWIPL which they had supplied was well equipped for using copper scrap as well as copper cathode as raw material for making Coppe....
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....g such months and pays only the balance amount in cash." 56. The stand of M/s JMWIPL Jammu is that since they had utilized copper scrap as one of their raw materials in the manufacturing of copper rods and since the said quantity of copper scrap was purchased from the open market no, Cenvat credit was available to them on the same. On the contrary the Commissioner has given findings that since M/s JMWIPL had used diverted quantities of copper cathodes in the manufacturing of copper rods and since they did not use non-duty paid copper scrap which they were even otherwise technically not capable to use, hence by not taking cenvat credit they had been granted more refund which is not the intention of the Notification no.56/2002-CE. 57. We have already held hereinabove that M/s JMWIPL Jammu had duly received copper scrap in their factory during the financial year 2006-07 and 2007-08 and relied upon number of evidences in support of said findings. Admittedly no cenvat credit was available to JMWIPL on the quantities of copper scrap which they had purchased from the open market. Once it is found that no cenvat credit was available to the quantities of non-duty paid copper scrap we ....
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....itation (invocation of extended period) is left open. (B. Ravichandran) Member (Technical) (Anil Choudhary) Member (Judicial) Per. B. Ravichandran I have perused the order proposed by learned Member (Judicial). On careful perusal of the analysis and finding I am unable to persuade myself to agree with the said finding. With due respect, I record some of the areas of analysis in which I am not able to agree with the learned Member (Judicial). 2. The facts of the case and the narrations of the events are not repeated again as the same is mentioned in the appeal papers as well as the order prepared by the learned Member (Judicial). The following points require re-appraisal for a proper conclusion on the appeals by the appellant (a) the various statements and the deposition during cross-examination of Shri Shivji Gupta formed the main basis in the submissions made by the appellants as well as analysts of the learned Member (judicial). Shri Shivji Gupta was the Production Manager of JVIPL and is apparently well versed with the processes and the day-to-day activities of the appellant. His statement was recorded by the officers on various dates. The Original Authority re....
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....PL to manufacture copper ingots/rods using copper cathode has to be arrived at independently even without reliance on the statement of Shri V.K. Mittal ; (3) I find that one of the serious allegations in the proceedings against the appellants is regarding bogus purchase of copper scrap by the Delhi trading unit of JMWIPL. Perusal of appeal records and the impugned order reveals enough evidence regarding such improper documentation, non-existing sellers/ vehicles and other corroborative evidences. Verification conducted reveal that the vehicles shown to be used for transport of copper scrap from Rajasthan to Delhi were found to be having false numbers and were actually tractors, vans, water tankers, jeeps etc. At least two of the major sellers of the scrap were found to be non-existing ; (4) enquiries made with the commercial tax check post Lakhanpur on the route to Jammu revealed that one of the consignments were physically verified by the authorities and found to be not copper scrap but actually copper cathodes ; (5) the evidences gathered by way of statements and records from various transporters were relied upon by the Original Authority. These were contested by the app....
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....by Member (Technical)". (Anil Choudhary) Member (Judicial) (B. Ravichandran) Member (Technical) Per: Anil Choudhary I have gone through the separate order passed by Learned Brother Mr. B. Ravichandran Member (Technical). I find that the following questions arise by way of difference of opinion to be considered by Third Member:- 1. Whether, Member (Judicial) have rightly held that the statement of Mr. Shivji Gupta dated 26^th March, 2008 (RUD) is not reliable, as the same was not freely given and did not stand the test of cross examination and subsequent statement dated 30^th August, 2010 (RUD) is reliable, as it stood the test of cross examination and is also in compliance with the provisions of Section 9D of the Central Excise Act. OR As held by Learned Member (Technical), the re-appraisal of evidence, i.e., the statement of Shri Shivji Gupta is required with regard to other corroborative evidences and as such the matter needs to be remanded. 2. Whether Member (Judicial) has rightly held that JVIPL had cutter available in their factory and have used copper cathodes in manufacture after cutting, further the statement of One Shri V.K. Mittal is not reli....