AI Drafter 
TaxTMI 
TaxTMI 
2018 (12) TMI 1532
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....remises for supplies of spares to their aforesaid vehicles in the market; that appellants imported spares (parts, components and assemblies) in bulk from abroad and also from local manufacturers; that on receipt of such spares in their premises, and completion of quality checks by the stores persons, for the accepted items ‚Goods Receipt Note‛ are made in the SAP system; subsequently items are stored in respective bins / storage places in the parts ware house; thereafter, parts of required items are packed in polyethylene bags or wrapped with bubble sheet; then paper labels are either affixed on the bags or tagged thereon. The parts are then put in a master carton printed with their logo / emblem and name "Tatra Vectra Motors" printed thereon, then sold to customers from spare parts warehouse are transferred to their parts warehouse of the appellants located in various places of India and sold them in retail. It further appeared that the purchases were made by appellants under the pretext that the goods were intended for manufacturing section; that based on this their suppliers had also mentioned ECC number pertaining to manufacturing section in their supply invoices; t....
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.... assisted by Shri Mannat Waraich, Advocate appeared for the appellant and argued the matter and made oral and written submissions which can be broadly summarized as under : i) De novo adjudication order has been passed by Commissioner without taking into account specific directions of the Tribunal and detailed submission made by the appellants. ii) In the present case, Ld. Commissioner in OIO placed heavily reliance upon the statements of Mr. P. Ganesan and Shri. Neelakanta Rao in order to confirm the demand against the Appellant. In this regard, the Hon'ble Tribunal remanded the matter to the Ld. Commissioner with clear directions to allow the Appellant to cross-examine the witnesses. However, despite such clear directions, the Ld. Commissioner in the impugned OIO, once again, placed reliance upon the aforementioned statements, without granting any right of cross examination to the Appellant. Accordingly, the present OIO which has confirmed the demand on the basis of statements of dealers/agents without granting any opportunity of cross examination of such dealers/agents is bad in law and thus liable to be set aside. iii) The Ld. Adjudicating Authority has relied upon the....
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....ional consumers, the provisions of Packaged Commodity Rules, 1977 read with Standard Weights and Measures Act, 1976 would not be applicable. Accordingly, as the provisions of SWMA and PC Rules are not applicable, the provisions of section 4A of the Excise Act would also not apply and hence duty cannot be levied. viii) The Appellant has strong case in his favour that the alleged activity of manufacturing does not fall within the purview of Section 2(f)(iii) read with Section 4A of the Central Excise Act. The Appellant was always of a bona fide belief that the activity undertaken by him does not fall within the contours of manufacturing. The transaction in question is an issue of interpretation and there was neither any misrepresentation nor suppression of facts with an intention to evade payment of duty. 3.2 In the last round of litigation before the Tribunal, appellants had specifically taken up the plea that the activity of assessee with respect to package or labelling needs to be verified and the correct position ascertained, apart from request of cross examination of their officials as well as dealers. Only based on these pleas had the Hon'ble Tribunal ordered remand of th....
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....letus merely reiterated the facts. Neither any further submissions nor any counter arguments made in response to the submissions made by Ld. Advocate. 5. Heard both sides and have gone through the facts of the matter. 6.1 The relevant portion of the CESTAT remand order vide Final order No.1769/2009 dt. 16.11.2009 is reproduced as under : "3. We find that on the date fixed for personal hearing TVML represented by counsel, submitted an affidavit filed by the Deputy Manager (Finance) that the goods cleared to their customers were cleared as such. The counsel further requested that the activity of the assessee with respect to package or labelling etc. needs to be verified and the correct position ascertained. TVML further requested for cross - examination of their officers as well as dealers. Both the requests have been rejected by the commissioner who has proceeded to decide the case without extending an opportunity to TVML of being heard on the merits of the demand. Interests of justice therefore require that the impugned order be set aside and the case remitted to the jurisdictional Commissioner for fresh decision on merits after extending a reasonable opportunity to TVML f....
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....given case are the only exceptions that can be used as a ground by the Department to deny cross examination. No other grounds are permitted and if there are any such extraneous grounds, then the findings become perverse and bad in law. (iii) It is the responsibility of the Department who seeks to rely upon the statement of a witness basis which the demand is confirmed to facilitate the cross examination of the witness and the onus does not lie on the Assessee. (iv) It would not be mere ipse dixit of the officer to state that the exceptional circumstances contemplated under section 9D of the Excise Act exist for denial of cross examination. Instead the concerned quasi-judicial authority must prove that the concerned grounds exist to deny cross examination and solely rely upon the statement of the witness. (v) The adjudicating authority ought to have considered the affidavits of the defense witness and allowed such witness to be cross examined and rejection of such affidavit solely on the ground that these were filed much later during the de novo proceeding cannot be countenanced especially where the affidavits were filed pursuant to the de novo proceedings....
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.... activity of the appellants was frittered away only due to quasi-judicial lethargy. The directions for granting cross examination was also not honoured. In the meantime, the factory of the appellant has shifted from Hosur to Karnataka. Predictably, many of the persons whose cross examination was sought for by the appellants in the first round of litigation may not be available, traceable or may have become too infirm to recall events and happenings which happened ten years earlier. For these reasons, we find no purpose would serve by once again causing remand of the matter to the adjudicating authority. In our view, it would lead to further agony for the appellants. In this regard, we draw sustenance from the ratio of Tribunal's decision in Kiran Overseas Vs CC (supra) which stands affirmed by Hon'ble Supreme Court as reported in 1996 (88) ELT A 187(SC). The relevant portion of Tribunal's decision is reproduced as under: "6. Unfortunately, in this case the finding of the adjudicating authority is mainly based on the test report of the expert as could be seen from the orders of the adjudicating authority referred to supra. Since the expert could not be made available for cross-ex....