2018 (3) TMI 1121 - AT - Central Excise

Clandestine removal - X-Ray machines - case of appellant is that the matter should be remanded for reconsideration of overall matter as there are serious inconsistencies in the facts and the findings given by the Ld. Commissioner in the impugned order - Held that - there are indeed inconsistency between the finding given by the Ld. Commissioner in the impugned order and the facts narrated by the appellant, which is arising from the records seized by the investigation at the time of investigation - matter needs remand for reconsideration of various aspects such as quantity of clearance of X-Ray machines, valuation, eligibility of SSI exemption etc. - appeal allowed by way of remand.

Issues Involved:
1. Clandestine Removal of X-Ray Machines
2. Quantum of Clearances
3. Valuation of X-Ray Machines
4. Eligibility for SSI Exemption
5. Inconsistencies in Findings and Records

Issue 1: Clandestine Removal of X-Ray Machines
The Commissioner confirmed the demand of excise duty amounting to ?39,78,731/- on the alleged clandestine removal of X-Ray machines by the appellant. The appellant contested this, arguing that the goods cleared were parts exempted under SSI Notification 1/93. The Tribunal noted inconsistencies in the findings and the appellant's explanations, particularly regarding the destruction of records and the maintenance of statutory records.

Issue 2: Quantum of Clearances
The appellant argued that the quantum of clearances was wrongly computed by the Department, which relied on bank deposits and the number of X-ray tubes purchased. The Tribunal observed that the appellant provided detailed explanations and records, including bank statements and purchase details, to contest the Department's calculations. The Tribunal found inconsistencies in the Department's reliance on these figures without considering the appellant's records.

Issue 3: Valuation of X-Ray Machines
The valuation of X-Ray machines was disputed, with the Department using order confirmation forms to compute the value of clearances. The appellant argued that these forms were merely quotations and not indicative of actual sales. The Tribunal noted that the appellant provided evidence of contemporaneous prices and statutory declarations, which were not adequately considered by the Commissioner. The Tribunal found the Department's valuation method to be based on assumptions rather than concrete evidence.

Issue 4: Eligibility for SSI Exemption
The appellant claimed eligibility for SSI exemption under Notification 1/93, which the Commissioner partially allowed. The Tribunal noted that the appellant provided judgments supporting their claim for SSI benefits even without formal registration as an SSI unit. The Tribunal observed that the Commissioner failed to consider these judgments and the amendments to the notification, which increased the exemption limit. The Tribunal found the appellant's claim for SSI exemption to be justified based on the provided evidence and legal precedents.

Issue 5: Inconsistencies in Findings and Records
The Tribunal noted significant inconsistencies between the findings of the Commissioner and the appellant's records. The appellant provided detailed replies and evidence, including seized records and statutory declarations, which were not adequately considered in the impugned order. The Tribunal found that these inconsistencies warranted a remand for reconsideration of various aspects, including the quantity of clearances, valuation, and eligibility for SSI exemption.

Conclusion:
The Tribunal concluded that the matter needed to be remanded for reconsideration of the issues, given the inconsistencies between the Commissioner's findings and the appellant's records. The Tribunal directed the adjudicating authority to pass a new order expeditiously, keeping all issues open for reconsideration, except for the portion of the demand already dropped, which had attained finality. The appeals were disposed of by way of remand to the Adjudicating Authority.

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