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TMI Blog1990 (1) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... ngement for reconditioning of Batteries. Duty paid Battery plates removed from the factory were used for the reconditioning of Batteries. On 10-11-1971, Central Excise officials visited a Shed near the Victory Service Station, G.T. Road, Shahdara, which was about 2 furlongs away from the factory and found 100 Electric Storage Batteries bearing trade mark ACME being packed. Enquiries were made and the factory premises of the appellant searched. Statement was also recorded from Shri R.G. Suri, the then Managing Director of the appellant. On 12-5-1972, a show cause notice was issued to the appellant alleging that, as regards 100 batteries which had been seized from the Shed, there was reasonable belief that they were actually manufactured by the appellant and removed clandestinely without payment of duty and without making proper entries in the statutory Central Excise records. It was further contended that, on the basis of the search carried out in the factory premises of the appellant, the appellant was selling goods on sales invoices which did not tally with the Central Excise records. It was contended that there was a difference between the batteries as sold on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h show cause notice was issued consequent upon the aforesaid order of the Central Govt. All the allegations contained in the earlier show cause notice were repeated with the addition of para 6 which reproduced the report of the Assistant Collector who had been deputed to investigate in the matter and who had visited the factory premises and the Godown of the appellant. The Collector of Central Excise confiscated 100 Batteries under Rule 173-Q. He confirmed the total demand of Rs. 2,65,759.89 for the period 1968 to 1971 and also imposed a penalty of Rs. 40,000.00. Hence this appeal. 5. We have heard Shri M. Chandersekhran, learned counsel and Shri B.S. Ganu, learned DR. 6. The appellants contend that the show cause notice dated 2-9-1981 is barred by limitation as it seeks to demand duty for the period 1968 to 1971. In the alternative, if the show cause notice is construed as a continuation of the earlier proceedings, then the findings in the earlier order in favour of the appellant cannot be denied - the first adjudication order extended the benefit of doubt in respect of Import application figures and also confined the demand to duty on batteries alone, setting aside the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contents of the Asstt. Collector s report. The show cause notice is therefore to be treated as a continuation of the earlier proceedings. However, we see great force in the contention that the order passed on adjudication of the proceedings initiated by the show cause notice of 2-4-1981 cannot travel beyond the earlier order and we hold that the appellants are entitled to the benefit of the favourable findings contained therein in respect of import application figures and battery plates. Therefore, we will consider the issue of confiscation of 100 batteries demand of duty on batteries alone. 9. 100 batteries were confiscated because party failed to state the name of the person from whom these batteries were got assembled labour charges paid to them. The party also failed to conclusively identify the goods under seizure with old/new containers purchased by them. Also, where new containers have been purchased, there are reasons to believe that new batteries were assembled rather than old were reconditioned. After all, the goods seized were not found marked re-conditioned nor is there any mention in the panchnama to the effect. These observations are totally contrary to fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1056(B) 2,40,283.20 (B) stands for batteries Cleared(2) as per RT-12 return 257(B) 34,435.25 (3) Manufactured as per C.E. records (i) 238 (B) (ii) 59559 (P) 31,585.63 48,075.30 (P) stands for plates Total of Sr. No. (3) 79,660.93 Book(4) value of products turned out as per App. 14 of Import Application, submitted to Jt. CCI E, for batteries and plates Not given 4,74,157.50 (5) Computed value of batteries alleged to have been cleared without payment of duty - Srl. No. (4) - Srl. No.(3) Not indicat ed 3,94,496.57 (6) Alleged evasion of duty worked out on the basis of Srl. No. (5) Basis Rs. 59,174.49 Rs. 5,917.45 Rs 65,091.94 (C) During the year 1970-71 : (1). Sold as per available invoices (2) Cleared as per CE records 2146 183 5,45,667.73 19,851.82 (3) Computed value of batteries alleged to have been cleared without payment of duty - Sr. No. (1) sr. No. (2) Not indicated 5,25,815.91 Even though not indicated but that appears to be the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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