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TMI Blog1987 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... quantities have been arrived at. Therefore, they were strictly speaking, rather handicapped in replying. However, on their own, they had checked up their records and it was their contention that both these quantities were duly cleared on payment of duty. They had produced the G.P.I.s and submitted that these were actually removed first from their factory to Sonai Stockyard and then they were supplied to the parties concerned. 2. The Collector has, however, not accepted their contention because in their initial reply they had mentioned that they were delivered to Mr. Khemchand Rajkumar and subsequently they had mentioned that they were supplied to Sonai Stockyard. It was their contention that the fact is that from the factory they were removed under GP-1 to their Sonai Stockyard and, thereafter they were supplied to their customers. 3. Regarding 79,320 MTs they had submitted that they were part of a consignment of 103.440 MT which were sent under GP-1s, dated 1-10-81 to 20-10-81. However, out of this stock, the quantity in question was returned by the customers and was, therefore, sent to their stockyard. 4. The Collector has not accepted their explanation because the quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts their explanation was not found satisfactory. 13. In respect of 79,320 MT the appellant was not able to show that the GP-1s related to a different quantity and the appellant has not explained the different quantity. 14. The department is concerned with the quantity which was returned by the appellant s customers to the appellant s duty paid stockyard. It was only concerned with the quantity which was cleared from the factory and returned to the factory because 173H applies only to such cases. 14A.-Furthermore, he would like to say that the penalty of Rs. 10,000/-has been imposed keeping in mind the very large quantity which was removed from the factory on payment of duty but was received back in the factory from the converters without complying with all the conditions of Rule 173H. 15. However, he accepts that in case of Rule 173H violation it was not necessary to invoke Rule 173Q and the department could have confined itself to Rule 210. 16. find that the learned Counsel s submissions to the effect that the show cause notice is rather vague, is correct, inasmuch as in respect of 39,900 MT of steel ingots Annexure A of the show cause notice indicates an entry as indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re produced before the learned Collector, it should not have been too difficult for him to take note of the indicated placed of clearance and other particulars and to judge the correctness or relevance of the documents and record his observations. 22. he above discussion shows that on the one hand, the show cause notice has self-contradictory observations incorporated in its Annexure and is, therefore, a vague, confusing and improper notice; On the other hand, the Collector s scrutiny is incomplete and his finding rather vague. In contradistinction, the appellants have given a plausible explanation and, therefore, I consider that the charge of clandestine removal of these goods with intent to evade duty, has not been established beyond doubt. 23. As far as the quantity of 79,320 MT is concerned, I find that the Annexure A of the show cause notice does not indicate any such quantity against the column meant for M/s. Calcutta Steel Company. The Annexure also does not indicate 103,440 MT mentioned by Collector. In fact, the only figure of 79,320 MT of steel ingots which is mentioned in Annexure A has been so mentioned with reference to Ganesh Forging Co., Belur, Howrah and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta Steel Co. Ltd. and M/s. East India Industries respectively under cover of delivery challans and gate passes in lieu of GP-1. In these circumstances, the Collector should have realised that read as a whole the department s charges were apparently far removed from facts and in the above context when the appellants had given plausible explanations and submitted documents the Collector should have in the normal course either believed them and accepted the documents or at least extended the benefit of doubt but the Collector has chosen neither of the two causes and announced his verdict with reference to vague charges in a vague manner. This is not proper. 25. The Collector has also failed to notice that the show cause notice is itself bad in law as it not only includes contrary observations/ remarks but incorporates quantities admittedly cleared on GP-1 on payment of duty, as apparent from the above discussion as also from another example evident from Entry-3 in Annexure A reproduced in the Annexure to this order. 26. It also appears that the department is in a state of confusion regarding the implications of invoking Rule 173H. The minute one invokes Rule 173H, by necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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