9911796707
TMI Blog1998 (8) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... . 35,000/- under GP1 No. 19 dated 29-3-1986 without payment of Central Excise duty i.e. at nil rate of duty under Notification No. 175/86 dated 1-3-1986 as amended, even though this Notification was not admissible in view of para 6 of the same Notification. The department was therefore, of the view that this quantity was leviable to duty at the appropriate rate of clearances exceeding Rs. 2.5 lakhs value during 1985-86. 2. The statement of Smt. Pratimaben Arvindbhai Patel was recorded on the same date in which she stated that the appellants firm consisted of two partners viz. Shri Trilok Chand Jain and Smt. Nirmal Jain; that they manufactured wet Dyes etc.; that certain papers recovered from her purse contained details of sales, purchases and expenses in respect of Vat Magenta and she further stated that she was the Proprietor of M/s P. Trading Company which is a firm engaged in trading of chemicals and dyes and supplies raw materials for manufacture of dyes to the appellants. Further investigation revealed that M/s P. Trading Company was a fictitious unit created by the appellants. The private papers recovered from the purse of Smt. Pratimaben A. Patel showed clearances of Vat M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not only on the private documents but also on statement of Shri Trilok Chand Jain who has clearly admitted clearances of Vat Magenta during the period from 2nd October 1985 to 31-12-1985 without payment of duty. By adding the clandestine clearances of Rs. 1,40,150/- between October 1985 to 31-12-1985, the appellants cleared Vat Magenta during 1985-86 as under : Rs. Clearances from 1-4-1985 to 1-10-1985 377 kgs 63,700/- Clearance from 2-10-1985 to 31-12-1985 with bills 617 kgs 1,24.900/- Clearance from 2-10-1985 to 31-12-1985 without bill and with GP 1s 1,40,150/- Further clearance from 1-1-1986 to 24-3-1986 271 kgs 56,200/- 1265 3,84,950/- Less exemption of Rs. 2.5 lakhs as per 2,50,000/- Notification Duty demandable on excess clearances valued at 1,34,950 We therefore, hold that the appellants are liable to pay duty on goods worth Rs. 1,34,950/- which clearances were in excess of initial first clearance of Rs. 2.5 lakhs. The duty demand on such excess clearance is to be worked out by the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President Sd/- (Jyoti Balasundaram) Member (Judicial) 7. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon. Member (J), my views and the orders are as follows :- I observe that the appellants have stated inter alia that the search and seizure operations were not carried out in accordance with the prescribed procedure. They have in particular referred to the search of lady/steno s purse and the documents etc. recovered from her and alleged that no panchnama was drawn. This statement appears to be correct inasmuch as there is no denial from the department s side in this respect and the Collector has merely stated that non-drawal of panchnama does not weaken the department s case. All the same it remains an irregularity and the officers concerned should have ensured due compliance with the prescribed procedure and conducted the search and resumed the documents in accordance with law. 8. At the same time the ld. Collector is correct in pointing out that the department s case is based not only on the documents recovered but also on the statements of the various persons which have been recorded. 9. The appellants have allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be premature at this stage to say what would be the correct amount of duty leviable or correct amount of penalty imposable. The order of the Collector is therefore set aside and the matter is remanded for de novo consideration in accordance with law. The Commissioner should pass a speaking order after giving the appellants an opportunity of being heard in the matter and redetermine the correct amount of duty and penalty and pass appropriate orders. Difference of Opinion In view of difference of opinion between Hon. Member (J) and the Vice President the matter is submitted to the President for reference to a third Member on the following point : 1. Whether the entire case is required to be remanded directing the Collector to consider the matter de novo or, the matter is required to be remanded in the way proposed by the Hon. Member (J) and the penalty reduced in advance at this stage itself? Sd/- (Jyoti Balasundaram) Member (Judicial) Sd/- (S. K. Bhatnagar) Vice President 15. The impugned order relates to allegation of clandestine removal. Both the learned Judicial Member and the learned Vice President are agreed that the allegation is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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