ORDER
T. Anjaneyulu, Member (J)
1. These are applications filed by the appellants under Section 35F of the Central Excise Act, 1944 for granting waiver of pre-deposit of duty and penalty amount and stay its recovery.
2. The appellants are engaged in the manufacture of Stainless Steel flats, Stainless Steel ingots, Mild Steel ingots etc. in their factory at Plot No. 36, G.I.D.C., Umbergaon, Gujarat State. As the applicants factory is not equipped to manufacture S.S. flats, the S.S. Ingots manufactured in their factory are sent to the factory of one M/s. Supan Steels Pvt. Ltd. at Halol near Ahmedabad for manufacturing the same on job work basis. These S.S. Ingots are dispatched to the aforesaid job worker. After the work is completed, the material was sent back under cover of 57F(2) challans and the S.S. Flats are finally removed on payment of excise duty from the applicants factory at Umbergaon.
3. The Officers of the Central Excise and Customs, Surat, searched the factory premises of the appellants on 28.12.1998 and seized various documents, apart from 56.856 Mts. of S.S. Flats/Ingots/Runners and rises and M.S. Ingots found in the factory on the grounds that they were unaccounted. During the course of investigation thereafter, the statements of various persons were also recorded.
4. A Show Cause Notice dated 23.06.1999 was issued calling upon them as to why Central Excise duty to the tune of Rs. 16,38,780/- should not be demanded and recovered from them under Section 11A of the Act. The appellants have filed interim reply denying the allegations contained in the Show Cause Notice and also requesting for cross examination of about 31 witnesses, whose statements were relied on in the Notice. Out of the 31 witnesses, only 4 witnesses were made available for the purpose of cross examination.
5. The Commissioner of Central Excise, confirmed the duty in toto vide his Order-in-Original dated 15.02.1993. Thereafter, they filed appeal before the CEGAT, Mumbai. It was disposed off by an Order dated 21.02.2000 whereby the case was remanded to the original authority for de novo adjudication with a direction to allow cross examination of certain witnesses and also to enable the appellants to adduce evidence in support of their contention. The appellants were informed vide letter dated 12.12.2003 that they should bring forth witnesses themselves for cross examination. Thereafter, the Commissioner of Central Excise & Customs, Vapi, fixed the personal hearing without allowing cross-examination of any of the witnesses and passed impugned order dated 24.09.2004, confirming the duty and penalty as aforesaid. Hence the appeal.
6. The appellants relied upon the following decisions in order to canvass that it is for the Department to produce the witnesses whose statement they relied upon in passing the impugned order.
(1) 2001 (128) ELT 428 (Tri-Del.) – Merchant Exports (I) Ltd.
(2) 2000 (117) ELT 538 (SC) – Sound N. Images v. C.C.
7. After having convinced about the prima facie case established by the appellants, it is felt expedient to grant full waiver of the pre-deposit amount and stay its recovery. Accordingly, applications are allowed granting full waiver and stay and early hearing of the appeals are also fixed on 23.05.2005.
8. Applications are disposed off accordingly.
(Pronounced in Court)