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TMI Blog2009 (11) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... parties to whom the paper had been sent for cutting on job work, it was alleged that in fact only 63555 Kgs were actually received out of the total quantity of 1522301 Kgs and, therefore, according to the revenue, 1458746 Kgs were not actually received during the period 16-5-1986 to 7-7-1989. – Held that findings of fact in impugned order on quantity received and quantity manufactured cannot be set aside in writ proceeding - 684 and 781-783 of 2000 - - - Dated:- 18-11-2009 - Deepak Gupta and V.K. Ahuja, JJ. S/Shri R.L.Sood, Sr.Advocate with Arjun Lall, Advocate, for the Petitioner. Ms. Shilpa Sood, Central Government Counsel, for the Respndent. [Order per: Deepak Gupta, J.]. - The aforesaid four writ petitions are being disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir own waste paper and while cutting received back from three parties to whom the paper had been sent for cutting on job work, it was alleged that in fact only 63555 Kgs were actually received out of the total quantity of 1522301 Kgs and, therefore, according to the revenue, 1458746 Kgs were not actually received during the period 16-5-1986 to 7-7-1989. 5. During the course of the proceedings, statements of the suppliers who were alleged to have made supplies to the assessee were recorded. They denied having made supplies to the respondent. In fact some of the parties did not even exist at the addresses given by the assessee. Enquiries made from the sales tax barriers showed that no entries regarding such waste paper or waste cutting wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 209A of the Central Excise Rules, 1944. 7. The assessee then flied an appeal before the Customs, Excise Gold (Control) Appellate Tribunal (CEGAT). The Tribunal [2001] (137) E.L.T. 816 (Tri. Del.)] upheld the finding of the Collector. In so far as the determination of excise was concerned, it was found that the assessee was not entitled to the benefit of the exemption notification since it had not used pulp made from non- conventional materials exceeding 50%. However, the penalty on the appellant was reduced to Rs.1 crore. The penalty on Sh. S.S. Khaitan was reduced to Rs.1 lac, penalty on Sh. Anil Khaitan was reduced to Rs. 35,000/-, penalty on Sh. S.K. Khaitan was reduced to Rs.1,75,000/- and penalty on Sh. N.K. Vasu was reduced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion lists having been challenged or modified, the revenue was not entitled to withdraw the exemption to which the assessee was entitled to the benefit. There is an inherent fallacy in this argument. The classification lists were prepared on the basis of the declarations made by the assessee. The assessee in its declaration has stated that he would prepare un-coated packaging paper by using more than 50% raw material of unconventional type. No doubt the classification lists were approved but this was on the assumption that the paper being manufactured would be uncoated packaging paper and that more than 50% of the raw material, i.e., pulp would be manufactured from non-conventional materials. The classification of the item has not been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that assuming, without admitting, that the quantity of 1373348 Kgs was waste paper/white cutting No. 1 was not received as alleged by the Central Excise department, the quantity of total pulp procured and consumed would work out to 14424886 kgs (15798234- 1373348) and it is impossible to procure a quantity of 14972169 kgs of paper from 14424886 kgs of pulp. 9.1. The appellants have not taken into amount the quantity of waste paper/broke originated in the course of manufacture of paper. They have mentioned above that a quantity of broke/waste paper weighing 73,43,907 kgs was recycled for the manufacture of paper. This recycled quantity has been used for the manufacture of paper. Therefore, the quantity of broke recycled should be include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing the benefit of the Notification No. 138/86-CE., dated 1-3-1986 and accordingly penalties were imposed. The Tribunal has reduced the penalties imposed substantially. We see no reason to reduce the penalties any further. 17. It is however, pointed out to us that as far as Sh. S.S. Khaitan is concerned he had expired on 31-12-1988 and this led to the appointment of Sh.Anil Khaitan as Managing Director of the Company. No penalty could have been imposed on a dead person. Therefore, the penalty imposed on Sh. S.S. Khaitan who had died is set aside. 18. In view of above discussion, all the writ petitions are dismissed with one set of costs assessed at Rs.20,000/- However, the penalty imposed on Sh.S.S Khaitan is set aside. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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