TaxTMI 
TaxTMI 
2021 (8) TMI 938
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....ncluding the present appellant with M/s. JV Industries Pvt. Ltd. (hereinafter called as "JVIPL") as the main noticee. The said M/s. JVIPL were found to be the manufacturer of copper ingots, copper wire, copper rods, copper scrap etc. and were also found manufacturing copper nickel alloy ingots. On 19.12.2007 their factory premises were visited by Officers of Central Excise, Anti-evasion Branch. Some documents relating to purchase of inputs like nickel by JVIPL from the suppliers on high seas sales basis were found. The above show cause notice was issued based on the observation that those inputs, in fact, were not received in the factory premises of M/s. JVIPL but cenvat credit thereupon was still been taken by M/s.JVIPL. Resultantly, vide ....
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....erwise is required to melt the nickel. It is submitted that this statement is highly insufficient to reflect any knowledge on part of the appellant about M/s. JVIPL to not have used the nickel provided as raw-material by the appellant, in their final product. It is submitted that appellant has sold 700 Kg. of nickel waste to M/s. JVIPL against proper invoice and has received the due payments. The same is very much apparent from the statement of accounts as were recovered by the Department from M/s. JVIPL. The bills are also impressed upon to be on record. It is submitted that the penalty has wrongly been imposed upon he appellant alleging the cenvat credit of Rs. 86,723/- to have been wrongly claimed by M/s. JVIPL on the nickel provided by ....
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....f Rs. 4,37,55,733/- alongwith the interest and proportionate penalties upon as many as 19 noticees including the manufacturer as well as the raw-material suppliers. But simultaneously I observe that impugned appeal is filed by only one co-noticee among said 19 co-noticees, that too with respect to the amount of penalty confirmed against him i.e. Rs. 10,000/-. This observation is sufficient for me to hold that the present appeal is challenging the imposition of penalty of much less amount than the pecuniary limit of the Single Bench of this Tribunal. Therefore, the appeal can definitely be heard by this Single Member Bench. Accordingly, I proceed to adjudicate on merits. 6.1 From the order under challenge, it is observed that the impositi....
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....e of the cross-examination has not at all been considered while passing the impugned order. It is clearly apparent from the testimony of the witnesses cross-examined that their earlier statements were got recorded forcibly under pressure with use of coercion. It has been the deposed by most of the witnesses during their corss-examination that nickel was very-much available in the factory of M/s. JVIPL at the time of the visit by the Department, but was still not shown in Panchnama by the Investigating Officers due to reasons best known to the Department. The witnesses have specifically stated that M/s. JVIPL otherwise used to make copper-nickel alloys. I also observe that few of those witnesses have earlier also retracted their version but ....
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....n the nickel that nickel has not been used by M/s. JVIPL in manufacture of their final product and that it was not supplied by appellant to M/s. JVIPL. There is no effort on part of the Department for producing any evidence in support of said presumption. The findings of Commissioner are, therefore find to be based on presumptions and surmises. 10. Further, it is coming apparent also from the cross-examination of Mr. Vinod Kumar Jain, one of the Directors of M/s. JVIPL about his earlier statement for not using nickel in the process that he was made to write said statement under the pressure of the officers. The facts remains is that appellant is merely the supplier of raw-material to the manufacturer of copper/nickel ingots and there is ....