The Ahmedabad Bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) remanded matter to Commissioner as the necessary documents were provided to cross examine Government approved valuer on SHIS ( Status Holder Incentive Scheme ).
The appeal has been filed by M/s. L. M Wind Power Blade India Pvt Ltd, against rejection of the declared assessable, confiscation and demand of customs duty and imposition of penalty.
The appellant argued that they had imported Turning Cradle LM 47.6 P#02 and Blade shell lifting device LM 46.7/56.0P. The said goods were used goods. The said goods had been put to use by the supplier in their plant outside India. Revenue came to the conclusion that the said goods were new. On that ground the declared assessable value of Rs. 16.05 Crore (approx.) was enhanced to Rs. 24 Crore and the goods were confiscated. Demand of duty and penalty were also imposed along with interest.
The benefit of the SHIS Scheme under Notification No. 104/2009-Cuswas also denied on the ground that the Rotor Blades manufactured by using the aforesaid capital goods would not fall under the category of “relating to plastic sector” as required to get the benefit of aforesaid notification.
The appellant sought cross-examination of the Chartered Engineer Shri Lalwani. The appellant filed an interim reply seeking certain documents before filing a final reply and before cross examination of Shri N J Lalwani, two opportunities were given to the appellant for cross examination of N J Lalwani, on 21.12.2017, and again on 21.12.2017. The appellant did not avail the opportunity of crossexamination of the pretext that they did not supply certain documents.
The impugned order held that the appellant did not avail the opportunity to cross examine Shri N J Lalwani using excuse of non-supply of document when all the documents were already supplied or were in custody of the appellant. Therefore, it holds that the request of crossexamination and non-availment of the opportunity of cross examination granted was merely to delay the adjudication process. The impugned order thereafter held that the revised report of Shri N J Lalwani is the correct report and proceeds to confirm the demand of duty.
A Two-Member Bench comprising observed that “We hold that all necessary documents have been provided to the appellant. In the interest of justice, we give one last opportunity to the appellant to cross-examine Shri N J Lalwani. From the record, it is apparent that there was a deliberate delay on the part of the appellant to cross-examine the Shri N J Lalwani. The reasons why shri N J Lalwani change his strance will be helpful in reaching proper conclusion in this case. In this background, in the interest of justice we set aside the order and remand the matter back to the Commissioner. The commissioner will give two dates for cross-examination of Shri N J Lalwani and the appellant can avail any one of the dates.”
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