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TMI Blog1999 (9) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ought on record. It was contended for the appellants that the purpose of bringing these documents on record is to show that the Department did verify the contents of File No. 2 on which the Department s entire case is built upon. It was contended, therefore, that these documents are very material piece of evidence for defence. It was, therefore, prayed that the Miscellaneous Applications may be allowed. 4. The ld. DR Shri S. Srivastava and D.K. Nayyar object to the admission of these documents as this is a belated plea and submitted that these documents were not relied upon documents and therefore, need not be admitted. 5. On careful consideration of the rival submissions, we note that summons and Panchnama are documents drawn by the Department. They were a part of the investigations and since they were not available earlier, permission sought by the appellants is granted. Thus, the three Miscellaneous Applications are allowed. 6. Shri K.L. Rekhi, ld. Counsel appears for the appellants whereas Shri S. Srivastava and D.K. Nayyar, ld. DRs represent the Respondent Commissioner. 7. Contention of the appellants is that the factory was an SSI Unit manufacturing latex foam spong p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made a part of the documents supplied to the appellants. The ld. Consultant submitted that the intention of producing the summons dated 31-1-1994 and Panchnama dated 31-1-1994 is to bring to the notice of this court that nothing adverse was found against the appellants though some searches were conducted in the premises of one of the bulk customer of the appellants products. The ld. Consultant submitted that the findings of the authorities below that the detailed particulars contained in File No. 2 could not be only of pure imagination but is also an assumption. It was submitted by him that if someone wants to prepare an inflated balance sheet, he has to manipulate all the details and so is the position in the present case also. It was submitted that there was contradiction in the finding of the ld. Commissioner when it says on the one hand, how can any reliance be placed on a person who by his own admission is for deceiving someone, yet he placed full reliance on the contents of File No. 2 and holds the case as true though there was no corroborative evidence. Ld. Consultant also pointed out that the adjudicating authority had observed that the appellants had admittedly plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand was barred by limitation; that there was no suppression of production or clandestine removal; that the unit did not have the capacity to produce the goods shown in File No. 2. 13. The ld. Consultant submitted that in view of the above, the penalties imposed were harsh and unfair. He cited and relied upon the decision of the Apex Court in the case of Collector v. H.M.M. Ltd. - 1995 (76) E.L.T. 497 (S.C). 14. About the charging of interest and invoking of Section 11AB of the Central Excise Act, 1944, the ld. Consultant submitted that this Section was enacted on 20-9-1996 while the alleged irregularities took place during the period 1991-92 to December, 1993 and thus interest was not attracted. In support of this contention, he cited and relied upon the decision of this Tribunal in the case of Maruti Udyog v. Collector - 1998 (101) E.L.T. 765. 15. The ld. Consultant submitted that quantification of demand is defective. Inasmuch as classification of the lower rated goods as per File No. 2 has been ignored and all goods have been assessed at higher rate on the ground that when a person sets out to cheat, he would be doing so only for higher rated goods in order to maximis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that expert opinion given by this man was not acceptable in this case, as he had no experience of determining the capacity in respect of units manufacturing latex rubber products as per the norms set by Rubber Technologist and thus the expert opinion had no value. He submitted that the longer period has rightly been invoked, as the appellants had not supplied correct figures. On the confiscation of goods worth Rs. 3,37,947/-, the ld. DRs submitted that the goods have been rightly confiscated and the redemption fine of Rs. 85,000/- has rightly been realised by the enforcement of the Bank Guarantee because these goods were not recorded. He submitted that the fines and penalties are also reasonable and commensurate with the seriousness of the offence. He, therefore, prayed that the appeal may be rejected. 18. We have heard the rival submissions. We find that in their appeal memo. the appellants main contention was that the unit was not capable of producing the quantum of goods recorded in File No. 2. It has been argued by them that the unit was working in single shift and that they had not sufficient plant and machinery and moulds to produce that quantity of goods which are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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