9911796707
TMI Blog1999 (6) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention to evade the payment of Central Excise duty. The aforesaid charge was made on the following allegations :- (2) The aforesaid charges are based on the facts and figures obtained through investigation conducted by this Office following receipt of a letter from the Refinery vide No. PNM (OM S)/86/92, dated 24-12-1986. The said letter stated therein that the Refinery wanted to take back about 2453.649 KL of contaminated Naptha from M/s. H.F.C. Ltd.. Barauni. Referring to the cause of contamination of Naptha (Straight Run Naptha or SRN) supplied by them, the Refinery in the aforesaid letter further stated that it was due to migration of a very small quantity of Mixed Raw Naptha (MRN) ex-unit line while they were pumping SRN to M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of scrutiny. Requests were made over telephone as well but the records, as demanded, was not submitted. (6) Again, as this office had definite information and evidence in respect of clandestine removal of MRN without payment of Central Excise duty, the Refinery were again requested vide this office letter C.No. MOP 8(a)/87/286, dated 3-4-1987 to come out with full facts. But the Refinery lost this opportunity too given to them in good faith (7) The intention to mislead this office and to evade payment of Central Excise duty is amply clear in view of the letter Ref.CPNM/5, dated 7-1-1987 (it is a private letter and for use within refinery or related concerns only) by Mr. B.P.M. Sinha, Chief Production Manager of the Refinery addres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng irregularity has been detected when on 15-12-1986, on completion of a transfer of MRN from Tank 77 to tank 4, the Refinery failed to account for a quantity of 1062.853 KL in the receiving tank (TK 4 once again) and seems to have removed the same without payment of duty again in violation of Rule 9(1) read with Rule 144 of Central Excise Rules. 2.2 The appellants herein in their reply dated 23-11-1997 based on documentary evidence and detailed explanation, submitted that the allegation of clandestine removal as alleged in the aforesaid show cause notice is totally misconstrued and not based on correct evidence; rather it is based on conjectures, surmises and presumptions. It was therefore submitted that the demand of duty to the tune of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said letter dated 24-12-1986. He further submits that the show cause notice alleges clandestine removal with intention to evade demand of duty. In other words the show cause notice relies upon the ingredients for invoking larger limitation. He therefore submits that the show cause notice should have been issued by the concerned Collector of Central Excise and not by the Superintendent. On this ground alone the proceedings initiated by the department, submits the ld. Representative, are unsustainable. For this proposition he relies on Tribunal s judgment in the case of Punalur Paper Mills Ltd. v. C.C., Cochin - 1987 (31) E.L.T. 770. In that case we observe the show cause notice was issued by the Assistant Collector after taking the permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to prove clandestine removal he submits is squarely on the Revenue. No such evidence at all has been adduced by the Revenue in this case. For this proposition ld. Representative relies on Tribunal s judgment in the case of Hindusthan Lever Ltd. - 1996 (87) E.L.T. 385. Ld. Representative therefore submits that even on merits the department has no case. 6. Based on the aforesaid facts and circumstances and the fact RT 12 returns filed in January, 1987 and the process of investigation was also started on the strength of appellants letter dated 24-12-1986, the demand would be barred by time, because nothing can be said to have been concealed by the appellants from the Revenue. 7. Opposing the contentions ld. JDR Shri R.K. Roy reiterates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Collector has applied his mind to the facts and circumstances of the case before issuing the show cause notice. His purpose of writing the aforesaid letter appears to be to merely save the proceedings initiated by the Superintendent which was ab initio untenable. On this short ground alone, the appellants succeed and the impugned Order deserves to be set aside. 9. However, we find even on merits regarding the clandestine removal of MRN the Revenue does not have a good case inasmuch as it is merely based on unreasonable inferences drawn from alleged insufficient explanation given by the appellants. As rightly pointed by the Ld. Representative the case of clandestine removal has to be based on positive evidence. Such an evidence i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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