TaxTMI 
TaxTMI 
2023 (8) TMI 55
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....e trading in peripheral/parts of computers system. To develop packaged software and to carry out in house research and development, the Appellants had purchased computer systems for in house use and software development purposes. They assembled computer systems in house but not traded those hardwares. During search conducted in January 1995 in Midpoint Software Company, several documents of the Appellants were taken up by the respondent department and were never returned back to the appellants despite several requests made in writing to the concerned Assistant Commissioner. Ultimately show cause notice dated 13.7.1995 was issued to the Appellants with proposal for recovery of duty and penalty. Common show cause notice dated 22.12.1995 was issued to these Appellants with another M/s.Compac Computer demanding above referred duty and penalty on the Appellants that could not be contested by the appellants for want of documents which were taken into their custody by the department and never returned back. Order-in-Original No.10/97 dated 20.10.1997 was passed after adjudication process that confirmed proposed demands and penalties which were challenged by the Appellants before this Trib....
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....demands are liable to be set aside and the Commissioner had perhaps for this apparent reason, dropped the entire demands against M/s. Compac Computer, another assessee in this proceeding since documentary evidence were not available but erroneously had confirmed the demands against these appellants by accepting few available documents, which were otherwise favouring the appellants. 4. To elaborate the same, learned Counsel also had drawn attention of this Bench to para 49 of the Commissioner's order vis-àvis the seized documents to justify those documents were nothing but few invoices issued to different parties through which components of computers were sold together but such invoices clearly indicated that those computers were subjected to 'second sale' that would justify the Appellant's stand that those were old computer peripherals. 5. Learned Counsel for the appellants further submitted that contrary to the judgements passed in the case of Sanket Food Products Pvt.Ltd. vs. Commissioner of Central Excise, Aurangabad- 2005 (188) ELT 107 (Tri.-Del.), Tulsyan NEC Ltd. vs. Commissioner of Customs, Chennai-2003 (157) ELT 627 (Mad.) and Shalimar Agencies vs. Commissioner of ....
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....nse to such submissions, learned Authorised Representative Shri P.K.Acharya submitted that in the second round of adjudication, due importance was given to the non-availability of documents by the adjudicating authority and only on the basis of documents which were supplied to the Appellants vide letter dated 7.5.2008 were taken into consideration to confirm only a portion of demand. He further submitted that there is plethora of case law referred in the field that cross examination is not mandatory and confessional statement recorded would be sufficient to confirm the demand and in the instant case not only suppliers have deposed in their statements that they had supplied computer parts and not the entire system that has also been confirmed by Shri Amit Patel, Hardware Engineer, who stated to have been engaged in assembling computers alongwith 3 other Hardware Engineers employed by the appellants and they sell one computer system per month. Additionally, Learned AR was keen to point out that owner/directors of the Appellants company agreed with the statement of Shri Amit Patel that they were assembling computer systems and sale was effected from their units for which the demands w....
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....de by the Commissioner, it goes without saying that (i) some of the duty demand were mistakenly made on the goods traded by the Appellant; (ii) duty was also demanded on Monitors, Key-Boards, other peripherals and data security packages; (iii) alongwith the computer system, duty was also charged on the printers though those where accessories; (iv) his ultimate observation is that confirmation of demand would require necessary scrutinisation of each invoices mentioned in the show-cause notice; (v) confirming demand solely on the basis of statement of witnesses would be inconsistent with the principle of natural justice. After making these observations, he noted that as because documents relating to M/s. Compac Computers was not available, no demand could be confirmed against it, for which he restrained to himself from analysing the replies given by M/s. Compac Computers. 10. Learned Counsel for the Appellant has rightly argued that this being the observation of learned Commissioner, basing on the invoices available through which old computers were sold out as second sale, demand could not be raised since second sale are neither subjected to excise duty nor to the State VAT. He also....