9911796707
TMI Blog1990 (10) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... 70001-70003-70004-23061 23064 and these sorts were covered under classification List Nos. 30/85-86 and 5/86-87. During the period November 1985 to January 1987, they manufactured and cleared yarn and fabrics of different varieties and it appears that they paid a total Central Excise duty of about 6 crores. Certain investigations were conducted by the Central Excise Deptt. after visit by them to the appellants unit on 14-4-1987 when they resumed records of the appellants. Subsequently, the Deptt. issued a show cause notice on 14-3-1988 and the allegations were, in effect, as follows : On further examination of the records, it was revealed that the assessee have declared the width of same sorts number quality numbers of their products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f slab where lower rate of duty is payable. The packing slips despatch advices pertaining to above referred sorts of which the width had been given as 88/89 cms. were sorted out and a chart Annexure A prepared which is enclosed. The total quantum of the fabrics of these sorts on which the assessee had paid the short duty came to 1,39,178 metre of 1,23,254.51 Sq Metre. Thus, the Assessee have evaded the excise duty amounting to Rs. 2,46,509.02 @ 2/- per Sq. Metre leviable on 1,23,254,51 Sq. Metre of fabrics. The assessee was also asked verbally on 14-4-1987 to explain his position in this regard. Shri Prakash Maheshwari, Commercial Manager of the Unit in his written explanation submitted on 29-4-1987 to the Asstt. Collector (Prev.) Hqrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abrics width 91 cms. as given. They explained that the packing shows that the width was 91 cms. and went on preparing slips in these as well as other sorts showing the width as 89 cms. They stated that the normal/standard width of their fabrics was always 89 cms. and pleaded that as it is only an error by a clerk the explanation may be accepted. They further relied on copies of AR-3 under which fabrics were received by them from the processing Units M/s Bhilwara Processors to show that the width of the fabrics was 91 cms. when received after being processed. They stated in the reply that some fabrics from these sorts were still lying in their Packing Deptt. and the officers were requested to measure the width. They stated that to the best o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty price) not having changed, the higher rate of duty demanded and paid by them should be deducted from such price as a result of which the assessable value would work out to Rs. 2295/- and consequently the goods would be liable to duty under Heading 5512.11 and there could be offence committed by the appellants. They denied any wilful mis-disclaration, and argued that the demand is hit by limitation. 4. Before us the learned Advocate for the appellants reiterated the grounds in great detail. He submitted that there was no reliable evidence to substantiate the Department s charges. He argued that in not having under-taken the verification of the width of available fabrics, the Collector failed to being out the truth. The learned Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey being the result of a clerical error and their not being satisfactory documents. We cannot accept their arguments on either point. Once the appellants documented the details of the fabrics, repeatedly it is not open to them to deny the correctness thereof by a mere oral plea of clerical error. There should be no end to proceedings if such a weak ground is accepted. The appellants did not produce any documented evidence to the contrary. Therefore and for the reasons recorded by the Collector in the impugned order, the packing slips cannot be ignored as evidence. That they are not prescribed by Law is not a ground to ignore their evidential value. 7. The submission that full investigation was not done by the Department has some force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der as follows : (i) The Collector s finding regarding wrong declaration of width of the fabrics is upheld; (ii) His finding regarding valuation is set aside. He should pass fresh orders about the correct value and consequent liability to duty keeping in mind (i) the ratio of the Supreme Court s judgment in Bata Shoe Company (supra) and (ii) such arguments as the appellants may advance in this regard. They should be heard in person. Thereafter, duty liability should be determined afresh; (iii) The penalty is set aside. After arriving at a legal finding on the point of value, the Collector should examine if still a penalty is warranted, and if so how much. He may then impose it. The appellants should be heard on this point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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