JUDGMENT JUDGMENT K.S. Jhaveri, J. —Since all these appeals arise out of the same order, they are being decided by this common order. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee. 3. This Court while admitting the D.B. Excise Appeal No. 19/2010 on 29-9-2010, framed the following substantial questions of law :- "1. What is the extent of burden required to be discharged by the Department in order to establish clandestine removal of goods by the Respondents? 2. Whether statement recorded under Section 14 of the Central Excise Act constitutes admission on the part of the respondent as to the clandestine removal of goods and whether such statements ought to have been totally ignored in the absence of cross examination of the witnesses." 4. This Court while admitting the D.B. Excise Appeal No. 20/2010 on 8-4-2013, framed the following substantial questions of law:- "1. What is the extent of burden required to be discharged by the Department in order to establish clandestine removal of goods by the respondents? 2. Whether statement recorded under Section 14 of the Central Excise Act constitutes admission on the part of the respondent as to the clandestine removal of goods and whether such statements ought to have been totally ignored in the absence of cross examination of the witnesses." 5. This Court while admitting the D.B. Excise Appeal No. 21/2010 on 8-4-2013, framed the following substantial questions of law:- "1. What is the extent of burden required to be discharged by the Department in order to establish clandestine removal of goods by the respondents? 2. Whether statement recorded under Section 14 of the Central Excise Act constitutes admission on the part of the respondent as to the clandestine removal of goods and whether such statements ought to have been totally ignored in the absence of cross examination of the witnesses." 6. This Court while admitting the D.B. Excise Appeal No. 22/2010 on 8-4-2013, framed the following substantial questions of law:- "1. What is the extent of burden required to be discharged by the Department in order to establish clandestine removal of goods by the respondents? 2. This Court while admitting the D.B. Excise Appeal No. 22/2010 on 8-4-2013, framed the following substantial questions of law:- "1. What is the extent of burden required to be discharged by the Department in order to establish clandestine removal of goods by the respondents? 2. Whether statement recorded under Section 14 of the Central Excise Act constitutes admission on the part of the respondent as to the clandestine removal of goods and whether such statements ought to have been totally ignored in the absence of cross examination of the witnesses." 7. It is contended that in Commissioner''s order in para 9.2 where specific finding is given in view of the decision of the Supreme Court which reads as under :- "9.2 Thus in view of aforesaid facts and decisions of the Apex Court it is held that conversion of hot rolled Aluminium Strips/Coils into cold rolled aluminium coils amounts to manufacture in terms of Section 2(f) of Central Excise Act, 1944 and attracts Central Excise duty leviable thereon. Further I find that case laws cited by the assessee in this regard are on different footings and not applicable in this case." 8. However, no specific finding is given by the Tribunal and in para 12 the Tribunal has simply observed as under :- "In the light of the discussions made above, the impugned order is set aside in toto against all the appellants and the appeals of the appellants are allowed with consequential relief as per law." 9. In our considered view, Tribunal seriously committed an error in not reversing the finding at Para 9 of the order of the Commissioner''s (Excise) which reads as under :- "9. In our considered view, Tribunal seriously committed an error in not reversing the finding at Para 9 of the order of the Commissioner''s (Excise) which reads as under :- "9. I have carefully gone through the case records, contents of the show cause notice issued to the assessee and others, written submission filed by the assessee in their defence, case laws cited by them and arguments made during the course of personal hearing - 9.1 While examining the assessee''s contention that "in the process of conversation of hot rolled products of chapter 7606 of the Central Excise Traiff Act, 1985 to the products of the same heading by cold rolled method no new product different than the raw material emerges hence the said process of conversion of hot rolled product into cold rolled product is not an excisable process and no duty is leviable on the end product obtained by the said process". I find that - (i) According to Section 2(f) of the Central Excise Act, 1944, the word "manufactured" includes "Any process incidental or ancillary to the completion of a manufactured product". Since, this is not an exhaustive definition the normal meaning of the term may be ascertained for the judicial interpretation. (ii) Hon''ble Supreme Court in the case of UOI v. Delhi Cloth Mills - 1977 (1) E.L.T. J199 (S.C.) had held that "manufacture" involve (bringing into existence a new substance). As to what is a new substance, the Apex Court adopted the Led 336 wherein it was observed that a new and different article must emerge having a distinct character or use. (iii) Hon''ble Supreme Court in the case of CCE v. Raj State Chemical Works - 1991 (55) E.L.T. 444 analysed the definition of manufacture and has observed that manufacture means a process which results in an alteration in goods leading to the production of a commercially new article. In the case of J.G. Glass Ind. - 1993 (97) E.L.T. 58 (S.C.) , the Supreme Court has laid down the process of manufacture is based on two fold test - (a) Whether by the said process, a different product with different use comes into existence and wherein the identity of the original commodity ceases to exist and (b) Whether the commodity which was already into existence will serve no purpose or will be of no commercial use. (v) In addition to the above, in the case of M/s Decorative laminates (I) Pvt. Ltd. v. CCE - 1996 (86) E.L.T. 186 (S.C.) . The Hon''ble Supreme Court of India has held that value addition and preparation of product for separate use are relevant factors for determining the question of manufacture. By applying the [ratio] of above judgments to the present case I find that when thicker aluminium coils/strips are subjected to the process of rewinding/cutting/slitting, annealing cold rolling etc. resultant product i.e. Aluminium Foil of lesser thickness emerges having distinct character and use and the identity or original commodity ceases to exist and in this process value addition also done. 9.2 Thus in view of aforesaid facts and decisions of the Apex Court it is held that conversion of hot rolled Aluminium Strips/Coils into cold rolled aluminium coils amounts to manufacture in terms of Section 2(f) of Central Excise Act, 1944 and attracts Central Excise duty leviable thereon. Further I find that case laws cited by the assessee in this regard are on different footings and not applicable in this case. 9.3. As regards assessee''s contention that entries contained in the impugned note books which have been presumed to be entries of clandestine removal were actually related to weighment to goods outside the factory at various intermediate stages (WIP). I find it unacceptable in view of the facts that - (i) Shri Sudershan Rout. Despatch Clerk of the assessee unit in his statement dated 19-2-2000 has admitted that the impugned note books contained details of material manufactured and cleared by them which was further corroborated by the facts stated by Shri L.K. Jha and Shri Rajesh Soni in their respective statements. (ii) Statement of Shri R.K. Sharma dated 20-2-2000, stating that the entries contained in the resumed note book pertained to weighment got done to calculate the annealing cycle or got done by the production department while transferring the material from one department to another and also that they had inadequate weighing facility, in their factory is not truthful. The explanation submitted by him is not supported by any document/evidence by Shri Sudershan Rout in their respective statements. Besides this even while Transport Co., by the employees of the assessee were station outside Bhiwadi and thus it is seen that assessee had no intention for weighment of goods outside factory (and within Bhiwadi). The explanation submitted by him is not supported by any document/evidence by Shri Sudershan Rout in their respective statements. Besides this even while Transport Co., by the employees of the assessee were station outside Bhiwadi and thus it is seen that assessee had no intention for weighment of goods outside factory (and within Bhiwadi). (iii) Shri Rajesh Soni, Production Supervisor of the assessee dated 21-2-2000, stated that their raw material was Aluminium Coil of thickness 4.6 mm and the normal weight of a coil was 2.5 MT and 2200/2300 Kg. of Aluminium foils was produced out of this; that, they were having two weighing scales, one capable of weighing 400 Kg. and the other upto 3.0 MT; that, the entire process of manufacture used to take 7 hours; that, they kept their finished goods in the form of sheets of 50 Kg. Bundle; that, entire work relating to production was being looked after by him; that, documents mentioned at serial Nos. 1 to 5 of the resumption memo dated 19-2-2000 were neither being maintained by the production department nor any entry was made by him or by any one among the production staff; that, these record were not related to production; that, no record was being maintained in the production department; that, they used to weigh the material in the factory; that, WIP (work-in-progress) material was not sent outside the factory. When confronted with the production register (RG-1) of the unit he admitted that their production was much higher than that reflected in the production registers but expressed his inability to explain the reasons for the same. He also stated that directions relating to production were being given by their Director, Shri R.K. Sharma on telephone. (iv) Shri L.K. Jha, authorised signatory of the assessee in his statement dated 25-2-2000, when confronted with the resumed record stated that the note books mentioned at serial Nos. 1 to 5 of the resumption memo dated 19-2-2000 were mainly in the handwriting of Shri Sudershan Rout. However, as regard that document mentioned at serial Nos. 1 to 3 of the resumption memo dated 19-2-2000 he admitted that entries mentioned at page Nos. 34, 36, 50 & 51 of document 1 and at page Nos. 34, 49 and 50 of document 3 were written by him, and were relating to goods cleared by him; that, clearance of goods mentioned at page Nos. 1 to 3 of the resumption memo dated 19-2-2000 he admitted that entries mentioned at page Nos. 34, 36, 50 & 51 of document 1 and at page Nos. 34, 49 and 50 of document 3 were written by him, and were relating to goods cleared by him; that, clearance of goods mentioned at page Nos. 34 to 51 of the document 1 were cleared without issue of invoice and without payment of central excise duty; that, details of clearances of goods mentioned at page Nos. 36 to 50 of document 1 pertain to the goods cleared to M/s. R.K. Foils, Jaipur and to M/s. Shambhu Metals, Jagadhri respectively for which invoices were issued by them; that, entries appearing at page Nos. 34, 49 & 50 of document No. 2 were the repeatition of the entries. This also proves that the abovesaid ''resumed'' note books contained details of clearances effected by the assessee. (v) Following follow-up reports receives from various buyers further corroborate that details contained in the impugned note books and tabulated in Annexure A, B and D pertains to the raw material received and excisable goods cleared by the assessee. (a) The follow up report received from the Assistant Commissioner, Central Excise MOD-V, Janakpuri, New Delhi under letter C. No. V (15)39/MOD-V/Prev/Eng./5/99/2038 dated 3-3-2000 indicates that M/s. Capseals, A-42, Mahipalpur, New Delhi had received seven consignments from the assessee and the details of the consignments received under invoice No. 40/16-9-1999; that of S. Nos. 177, 201, 204 and 297 respectively of Annexure "B" where the date, name of the party and quantity is same. Also the vehicle number in the invoice No. 87/3-2-2000 is tallying with S. No. 87 of Annexure "A". (b) The follow up report received from the Assistant Commissioner, Central Excise Division, Ambala under letter C. No. IV(16)CE/Prev/ 5/2000/1743, dated 23-2-2000 indicates that M/s. Shambhu Metal Industries, Jagadhari had received five consignments of Aluminium scrap from the assessee. Out of these consignments two were received after 19-2-2000, whereas the other three consignments received under invoice No. 65/4-12-1999; 71/14-12-1999 and 76/1-1-2000 are tallying with S. No. 247, 260 and 275 respectively of Annexure "B". The same entries are tallying with S. No. 37, 50 and 65 respectively of Annexure "A". Out of these consignments two were received after 19-2-2000, whereas the other three consignments received under invoice No. 65/4-12-1999; 71/14-12-1999 and 76/1-1-2000 are tallying with S. No. 247, 260 and 275 respectively of Annexure "B". The same entries are tallying with S. No. 37, 50 and 65 respectively of Annexure "A". (c) The follow up report received from the Deputy Commissioner, Central Excise MOD-VII, Rajendra Place, New Delhi under letter C. No. CE-13/AE/MOD-VII/49/2000/4214, dated 23-6-2000 indicates that M/s. Jai Shiv Metals, Delhi had received 8 consignments between 8-12-1999 and 19-2-2000, from the assessee. Out of these, details of the consignments received under the Invoice No. 84/23-1-2000; 85/2-2-2000; 88/3-2-2000; 89/7-2-2000 and 93/11-2-2000 are tallying with that of S. Nos. 290, 296, 298, 299 and 303 respectively of Annexure "B". Also the vehicle No. mentioned in the aforesaid invoices are tallying with the entries mentioned at S. Nos. 80, 86, 88, 89 and 93 respectively of Annexure "A". All these vehicles were booked from M/s. Baba Transport Company. The GR Nos. 3676/8-12-1999; 3802/29-12-1999; 4055/23-1-2000; 4111/2-2-2000, 4149/7-2-2000; 4216/13-2-2000 and 4176/11-2-2000 are tallying with S. Nos. 49, 68, 86, 93, 97, 112 and 103 respectively of Annexure "D". The vehicle numbers as mentioned in Invoice Nos. 67, 75, 84, 85, 88, 95, and 93 are also tallying with S. Nos. 50, 67, 86, 94, 95, 96, 105, 106, 103 respectively of Annexure "A". (d) Enquiry were also conducted with the Sales Tax Department. The Assistant Commissioner of Sales Tax Circle, Bhiwadi under letter C. No. AC/BHD/2000/196, dated 11-5-2000 has intimated about the vehicles, of the assessee which crossed their check post, the details provided at serial Nos. 3, 4, 5, 6 and 7-8 by the Sales Tax Department are tallying with serial Nos. 80, 87-88, 90, 91, 92 and 93 respectively of Annexure "A". Further, the details of Serial Nos. 5-6 and 7 provided by the Sales Tax Department are also tallying with serial Nos. 99-100 and 103 respectively of Annexure "D". (e) Further, the document appearing at serial No. 4 of the resumption memo dated 19-2-2000 is also containing details of raw material received by the assessee. These entries contains name of the supplier, the quantity and figure showing amount in rupees equal to the Kg. Raw material. All details of receipt of raw material contained in this note book are tabulated in the chart marked as Annexure "C". These entries contains name of the supplier, the quantity and figure showing amount in rupees equal to the Kg. Raw material. All details of receipt of raw material contained in this note book are tabulated in the chart marked as Annexure "C". Some entries of this chart are tallying with the raw material receipts from M/s. Rakhi Agencies e.g. entry Nos. 35, 37, 55, 56, 76, 90 are accounted for in the raw material register maintained in the RG- 23A Pt. I register. After considering these genuine receipts of raw material, I find that unaccounted receipts of the raw material comes to the tune of 7,45,993 Kg. (vi) From the GRS pertaining to the assessee it was observed that while booking the vehicle, the destination as told to the transporter namely M/s. Baba Transport Co. by the employees of the assessee were stations other than Bhiwadi which shows that the assessee had no intention for weighment of goods outside factory (within Bhiwadi) and in fact these transport booking were meant for transportation of goods to places outside Bhiwadi. This fact is further corroborated by the version of Shri Rajesh Soni that work in process material was not sent outside. (vii) Issue of parallel invoices of 95 & 96 both dated 19-2-2000, shows that the assessee was indulged in suppression of production and clandestine clearances without payment of Central Excise duty on parallel set of invoices. This position has been admitted by Shri R.K. Sharma, Director in his statement dated 12-4-2001. (viii) Voluntary debit of an amount of Rs. 5.0 Lacs on this account is tacit admittance of the guilt i.e. clandestine and evasion of duty. (ix) Substantial quantity of raw material was received but was unaccounted for in the statutory records. Similarly substantial quantity of scrap generated was not accounted for in the statutory records and was cleared without payment of Central Excise duty. Out of number of entries pertaining to clearances of scrap contained in the above said resumed note books, invoices in respect of two clearances of scrap were admitted to be issued. Shri L.K. Jha admitted clearances of 1831.8 Kg. of scrap on invoice and Shri R.K. Sharma admitted clearances of 460 Kg. of scrap on invoice. 9.4 In the light of plethora of evidences discussed above, I find that the entries contained in the documents mentioned at serial Nos. Shri L.K. Jha admitted clearances of 1831.8 Kg. of scrap on invoice and Shri R.K. Sharma admitted clearances of 460 Kg. of scrap on invoice. 9.4 In the light of plethora of evidences discussed above, I find that the entries contained in the documents mentioned at serial Nos. 1 to 5 of the resumption memo pertained to the clearances effected by the assessee and the same were part of the actual production of the assessee and the production reflected in the statutory records was suppressed and during the period 31-1-1999 to 19-2-2000, the assessee evaded Central Excise duty amounting to Rs. 1,37,65,825.70 by suppressing production and clandestinely clearing the goods, hence the same is recoverable from them under proviso to Section 11A(1) of the Central Excise Act, 1944 and since the assessee has contravened the provisions of Rules 9(1), 52, 173 and 226 of Central Excise Rules, 1944 by evading duty in the manner stated above they are liable for penal action under Rules 9(1), 52A, 173Q and 226 of Central Excise Rules, 1944 read with Rule 25 and Section 11AC of the Act and interest in terms of Section 11AB is also recoverable from them. 9.5 While examining assessee request for cross examination of Shri Sudarshan Rawat and Shri L.K. Jha I find that despite of issuance of repeated summons on 24-2-2003, 12-8-2003, 26 to 29-8-2003, 28-11-2003 and 27-1-2004 none of them appeared nor they are working with the assessee thus in their absence case cannot be kept pending and their statements which were tendered on the spot voluntarily and without pre-meditation are considered by documentary evidences as discussed supra. 9.6 As regards assessee''s request to cross examine all those persons whose statements were recorded by the department during the course of investigation in follow ups, I find that assessee had failed to prove relevancy of cross examination of these persons with the angle of his defence hence their request is not accepted. 9.7 While examining assessee''s contention that the amount realised by the assessee from the alleged sale of the goods may be considered as cum-duty-price I find it unacceptable in view of the fact that the value of Aluminium Foils/Scrap has been taken on the basis of average assessable value of Aluminium Foils/Scraps as discussed in details in paras 23 & 24 of show cause notice hence no benefit of cum-duty-price can be given to the assessee. 9.8 Further I find that Shri R.K. Sharma, Director, Shri L.K. Jha, Authorised Signatory and Shri Sudershan Rout, Despatch Clerk of M/s Rajasthan Foils Pvt. Ltd., Bhiwadi are also liable for penal action under Rule 209A of Central Excise Rules, 1944 read with Rule 26 of Central Excise (No. 2) Rules, 2001 as they are the person who concerned themselves with the goods which they knew and had reason to believe were liable for confiscation under Central Excise Rules, 1944 and are responsible for facilitating the assessee in evasion of duty in the manner stated above." 10. In view of the matter, in our considered opinion the matter is required to be reconsidered by the Tribunal. 11. However, Counsel for the respondent has relied upon the decisions in following cases :- 1. CCE v. Steel Strips Ltd. - 1995 (77) E.L.T. 248 (S.C.) 2. CCE v. Steel Strips Ltd. - 2003 (154) E.L.T. 336 (S.C.) 3. Tata Iron & Steel Co. Ltd. v. Union of India - 2004 (164) E.L.T. 372 (S.C.) 4. Faridabad Iron & Steel Traders Asso. v. Union of India - 2004 (178) E.L.T. 1099 Delhi 5. Basidev Garg v. Commissioner of Customs - 2013 (294) E.L.T. 353 (Delhi) 6. CCE v. Kurele Pan Products Pvt. Ltd. - 2014 (307) E.L.T. 42 (All.) . 12. In our considered opinion, the Tribunal has to consider afresh on facts first and then on the law which has been cited by both the sides. In that view of the matter, in view of judgments cited by both the sides, we remit back the matters to the Tribunal. Order of the Tribunal is set aside without giving any comments on the merits of the case but since the Tribunal has not considered the finding arrived at by the Commissioner (Excise), it will be appropriate to remit back to decide afresh taking into consideration the facts and law prevailing as on today. Both the sides will appear before the Tribunal on 30-10-2017. 13. Endeavour is made by the counsel for the assessee that no point or substantial question was raised in the appeal. In our considered opinion, Tribunal is to consider the points raised in these appeals. 14. Therefore, we think that in these matters of taxation we should not go into technalities where Tribunal has not followed the law. 13. Endeavour is made by the counsel for the assessee that no point or substantial question was raised in the appeal. In our considered opinion, Tribunal is to consider the points raised in these appeals. 14. Therefore, we think that in these matters of taxation we should not go into technalities where Tribunal has not followed the law. It is made clear that the benefit of circular be considered since the original order is without considering the law and should be considered afresh. In that view of the matter, the matters are remitted back to the Tribunal. 15. The appeals stand disposed of.