9911796707
TMI Blog2001 (2) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... lued at Rs. 34,920.00 were found in excess of the quantity entered in RG. 1 Register. Some quantities of various raw materials i.e. Ferro Manganese, 205 kgs., Ferro Manganese (slag tonech) 700 kgs., Ferro Chrome 200 kgs., Ferro Silicone 1000 kgs. were also seized by the officers. The statement of present appellant being manager of the firm at that time was also recorded on 5-3-1988 wherein he deposed that the firm was processing raw material both on modvatable as well as on commercial invoices, entries in the production register were made on the basis of details given by the Melter. He also admitted that heat register was maintained by Shri Ajit Jain, Melter and entry in that register showed that seven heat of castings were taken on 4-3-1998 and total 108 heats were taken out in the month of January, 1998, by melting 80342 kgs. Material. On being shown challan No. 613 of Sujay Transport Company he also admitted that the consignment was cleared from the factory vide invoice No. 289 290. He further admitted that he did not dispatch material for challan No. 273 of Sujay Transport Co. He also even conceded in his statement that there may be some entries which could not have been reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Commissioner but later on failed to pursue the same for having faulted in making compliance with the stay order of the Tribunal and as such their appeal was dismissed vide order dated 19-4-2000; under Section 35F of the Act. Therefore, the impugned order of the Commissioner against the firm had become final. The findings recorded in that order by the Commissioner, as adjudicating authority that the firm was engaged in procurement of raw material, production of finished excisable goods without accounting in the record and removing the goods clandestinely without payment of duty have to be accepted as correct. The present appellant cannot challenge these findings by contending that there was no clandestine removal of the goods without payment of duty and that no production of the finished goods without accounting in the records was made and that there was no procurement of raw material which was not accounted for in the record. He can only dispute his liability under Rule 209A of the Rules on the ground of having no knowledge or concern in the transporting, removing, depositing, keeping, selling or purchasing or in any other dealing with any excisable goods which he knew or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal act i.e. non-accountal of the receipt and consumption of the raw material in the statutory record and transportation of the finished goods without proper documents and payment of duty was being done with his active knwoledge and consent. Without his knowledge and permission/consent, the raw material could not be received in the factory premises from outside nor any such raw material could be removed for utilisation in the manufacture of the final products. Similarly, the transportation of the finished goods through transport companies from the factory premises by trucks to various buyers could not be made without his consent, permission or knowledge. 11. The ratio of the law laid down in 1998 (97) E.L.T. 74, Krishna Co. v. CCE, Jaipur; 1996 (82) E.L.T. 347, Gurpreet Rubber Industries v. CCE., Chandigarh; 1989 (40) E.L.T. 429, S.M. Enterpries v. CCE; 1989 (39) E.L.T. 655, Kashmir Vanaspati and 1999 (85) ECR 657, CCE, Meerut v. Moon Beverages Ltd. referred by the counsel, are of no avail to the appellants in the present appeal. In the first case, the Collector s order regarding clandestine removal of the goods was not a speaking one and there was no authenticated evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. C. Vellukutty, ITR (Vol. IX) 1966 P. 239 (S.C.); Commissioner of Income Tax West Bengal v. Simon Carves Ltd., ITR (Vol. 105) 1976 P. 212 (S.C.); Income Tax Officer, I Ward Distt. VI Calcutta v. Lakhmani Mewal, 1976 ITR (Vol. 103) 437 (S.C.); Income Tax Officer, I-Ward, Hundi Circle, Calcutta Others v. Madnani Engineering Works Ltd., 1978 ITR (Vol. 118) P. 117 (S.C.) and Manju Tandon Another v. T.N. Kapoor, Dy. Supdt. of Police Others, 1978 ITR (Vol. 115) P. 473 (S.C.) referred by the representative of the appellant, is not attracted to the facts of the present case at all. All those cases were under the Income Tax Act and it has been observed that although the power to levy assessment on the basis of best judgment was not an arbitrary power but assessment had to be based on relevant material and there should be reasonable nexus to the available material and the circumstances of each case. The Taxing authorities must act in a fair and not in a partisan manner. The reason for formation of the belief must be held in good faith and should not be a pretence. But in the instant case, the impugned order has been passed not on the information or belief but on the strength of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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