9911796707
TMI Blog1997 (6) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty of Rs. 50,000/- was imposed on the appellants. 2. The appellants were manufacturing latex foam articles falling under Tariff Item 16A(1) of the erstwhile Tariff and under Heading 9404 of the Central Excise Tariff, 1985. They were availing of the benefit of Notification Nos. 80/80, 83/83 and 85/85 for the respective periods which notifications permitted clearances of specified goods up to certain values. In terms of Notification No. 31/76 they had claimed exemption from licensing and had filed declarations every year in terms of the said notification. In September, 1987 jurisdictional excise officers visited their factory and examined the records pertaining to the manufacture and clearance of the said goods. They found sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellants and Shri M. Haja Mohideen, JDR for the Revenue. 4. The thrust of the show cause notice was that the assessees had never declared their production of rubber compound/adhesive and that it was a mis-representation to cover the production and sale of articles of foam. Ld. Advocate referred us to a letter dated 1-7-1984 addressed to the jurisdictional Superintendent pursuant to the latter's visit to their factory in which they had given the figures of clearance of not only the rubber foam but also of latex adhesives for the period 1983-84 as also from 1-4-1984 to 30-6-1984. He also referred to a declaration filed by them dated 12-4-1984 in connection with exemption from licensing in which the declaration as to value of cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not believed since there was some relationship between him and the assessees. Shri Asthana placed reliance on three affidavits filed by other buyers. On perusal of the documents and the rebuttal made of the allegations it is to be held that the assessees were manufacturing latex compounds/adhesives during the period referred to in the show cause notice and that it cannot be held that under the guise of selling adhesives they were selling foam rubber parts. Thus on both counts of limitation as well as on the failure of the department to establish evasion, the orders of confirmation of the entire demand cannot sustain and have to be set aside. 6. As regards the orders of confiscation of the goods which were admittedly not shown in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain simplified register or even their personal accounts and where no accountal is made of any goods, the provisions of this clause would be attracted. Since this very clause was not before the Hon'ble High Court, the ratio of the said two judgments does not apply. The orders of confiscation in this case, therefore, do sustain. The quantum of fine already being lenient, does not require to be interfered with. 7. As regards the quantum of penalty we find that the Principal Collector has determined the quantum on both the counts namely evasion of duty as well as goods being kept without accountal. In view of our findings that the demand for the duty on goods was not sustainable, we deem it proper to reduce the penalty to token prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the invoice and there was no need for a formula of artificially price. It is the claim of Shri Asthana that when calculated at the sum total of invoices, the total value would not be exceeding the limits. 9. The show cause notice refers to five examples whereby the goods sold under certain invoices do not enter the calculations in the claims of value of clearances made by the assessees. The show cause notice calls it as `few' examples. It is not known as to how many other examples there are. It is his suggestion that all such omissions when put together may result in the value of the clearances being exceeded. Shri L.P. Asthana submits that these were the only instances found by the department and the Revenue lost would not be more ..... X X X X Extracts X X X X X X X X Extracts X X X X
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