9911796707
TMI Blog1995 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... irm. 2. The learned Consultant raising a preliminary objection pleaded that inasmuch as the longer period of limitation under Section 11A of the Central Excises Act has been invoked, the Collector alone should have adjudicated the matter as the competent authority as set out under Section 11A in such a contingency is Collector. He pleaded that Additional Collector should not be considered as Collector being an officer subordinate to Collector. 3. The learned DR pleaded that this issue stands settled by a number of judicial pronouncements both by the Tribunal and the Hon ble High Courts. He pleaded that for the purpose of Central Excise Act, the term Collector has been defined expressly to include Additional Collector also. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated funds by sale of the polybags manufactured out of the borrowed granules they would get their own stocks released from the bank and return the same to the person from whom they originally borrowed the granules. The learned Consultant pleaded that in the present case, the authorities during the course of the check at the premises of M/s. Eastern Polybags noticed that 21,625 kgs. of granules had been sent by them to the appellants during the period 2-4-1986 to 14-9-1987 and the department on a verification found that this quantity had not been accounted for in Form IV register for raw materials. The appellants were therefore charged for the non-accountal of this quantity and the authorities have held that the same were used for the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the granules sent by them on loan basis were also received back by them in the said quantities. He fairly conceded that while there is no evidence on record maintained by the appellants regarding the receipts and return of the loan quantities of the granules, there is also no evidence adduced against the appellants evidencing the excess production of the finished product out of these granules. He pleaded that clandestine removal could not be held against the appellants on a presumption. He pleaded that once the person who loaned the granules has come on record to say that those granules loaned were received back by him, nothing survives so far as the appellant is concerned. He pleaded that the appellants were afraid that they may be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants from M/s. Eastern Polybags, it is seen from the order of the learned lower authority that at the very outset when the discrepancy was noticed Sh. G. Balachander, Managing partner of the appellant firm has stated that they had taken the granules on loan from M/s. Eastern Polybags and had also returned the same to them. This return has been corroborated by Sh. K. Balakrishnan of M/s. Eastern Polybags. It is a matter of record that certain quantities had been taken on loan by the appellants over a period of time as a part of their business practice and the said quantities were not brought on record in the statutory records, namely Form IV. Under the law, these quantities should have been brought on record with suitable remarks ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore the testimony of Sh. Balakrishnan of M/s. Eastern Polybags (which has been mentioned as G. Balachander in the impugned order) cannot be relied upon to corroborate the version of the appellants. It is observed that the learned lower authority has not stated how in the proceedings held against the M/s. Eastern Polybags the quantity of 18,000 kgs. of HDPE granules returned by the appellants has been dealt with and how it leads to the inference that the version of return of the goods could not be believed. Just because the proceedings had been drawn against a person who has given certain testimony relating to certain facts cannot automatically make his testimony false unless it could be shown that the fact in question had been dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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