9911796707
TMI Blog2000 (5) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Officers visited the premises of the respondents herein and verified the stock on 24-8-1991 and found excisable goods packed in aluminium and plastic containers and tin drums, as against recorded balance Nil in RG-1 Record. The goods were detained and Shri H.N. Gokhale, Partner of the respondent firm was directed not to dispose of these excisable goods until further orders. The officers again visited the factory premises on 26-8-1991 and as Shri Gokhale on demand could not produce any evidence that the goods were accounted for in RG-1 Register seized the goods. Scrutiny of the documents revealed that the respondents herein were manufacturing Natural Essential Oils; that they had filed Classification List; that they had not filed any price list and that they were a Small Scale Unit and opted for invoice price procedure under Rule 173C(11) of the said Rule. Further it was noticed that the respondents herein in their balance sheet ending on 31-8-1987 showed the closing stock of finished goods worth Rs. 9,66,780.60 whereas in the RG-1 Register the closing stock of 6.015 kgs. of Natural Essential Oils of the value of Rs. 2,250/- only were shown on 31-8-1987. It was observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the GP 1s, the date vas written on despatch copy. Scrutiny of the excise records of the respondent s factory showed that no production and clearance of these goods had been recorded. 6. From the seized documents it was also noticed that a few original G.P.ls were lying in the files of the respondent firm. When Shri Gokhale was asked to explain why these G.P.ls were lying in the file instead of being sent to the buyers with the goods, he stated that this work was done by his clerk. It was, therefore, alleged that the goods were being cleared from the respondent factory without duty and that such gate passes were being reused to cover the transit risk for the goods illicitly produced and cleared. A SCN was accordingly issued to the respondent herein asking them to explain as to why the excess goods should not be confiscated, why duty should not be demanded on the goods removed clandestinely and why a penalty should not be imposed. 7. Ld. Collector while adjudicating the case framed two issues for decision. The first issue was whether the respondent herein wilfully suppressed production of excisable goods with an intent to evade payment of duty. The second issue was whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r favour. Ld. Collector therefore, held that the assessee had not accounted for goods in the RG-1 register on account of the fact that according to their understanding the stock was of semi-finished oils. Ld. Collector also observed that there was no excuse for non-accountal of the goods after issue of orders of the Asstt. Collector on 5-8-1991. 9. On issue No. II the statement of Miss Mendis in which she had clearly explained that job number was given by her and that when the goods were despatched after seeing the date from gate pass, the date was put in the despatch copy; that if there was no date or no gate pass number it clearly meant that the goods might have not been despatched. Ld. Collector also observed that no enquiries have been made with regard to the report of the unaccounted despatches as revealed from the Despatch Books from the consignees in support of this view. Ld. Collector also observed that during the years 1988-89 to 1990-91 the assessee had not completed full exemption limit of Rs. 15 lakhs and Rs. 20 lakhs and they had sufficient unutilised exemption limits. Ld. Collector also noted that on perusal of Annexure 5 to show cause notice on the basis of which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 175/86; that the terms of Notification No. 175/86 were not applicable; that this observation of the ld. Collector was incorrect because the assessee made a categorical statement in their defence reply that during the year 1987-88 they had Nil exemption limit available to them; that as per Annexure 5 to the SCN, duty amounting to Rs. 1,65,609.00 was demanded for the same period; that if the adjudicating officer was of the view that the duty was indeed chargeable on these goods then the amount of Rs. 1,65,609/- should have been confirmed; that this has not been done which confirms that the adjudicating officer came to the conclusion only from the fact that large amount of exemption limit was still available during three years; that since the assessee was paying duty from September, 1986 onwards, this clearly showed that they had exhausted the exemption limit. On the question of non-accountal of goods in RG-1 Register, it is claimed that the adjudicating officer had accepted the figures furnished by the assessee but no reasons for accepting the same were given; that no efforts were made to reconcile the figures furnished in R.T.12 returns and balance sheet. 12. We have heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of this decision is applicable on all fours. Ld. Counsel also submitted that this Tribunal in the case of Krishna Bottles v. CCE, Guntur reported in 1999 (84) ECR. 245 held that burden to prove clandestine removal is on revenue; that SCN was based on assumptions and presumptions and not on any evidence; that the so called unsigned information referred to as letter has no evidentiary value; that in this view of the matter, there is also no case for its remand to the jurisdictional authority for de novo consideration. Ld. Counsel submits that for coming to this conclusion this Tribunal has relied on a number of judgments of the Tribunal, High Courts and of the Supreme Court. He, therefore, submitted that the demand was not sustainable. 15. Referring to the judgment of this Tribunal in the case of CCE, Aurangabad v. Shetkari Sahakari Soot Girni Ltd. reported in 1999 (34) RLT 273. This Tribunal held that since Commissioner dropped the proceedings on merits as well as on limitation and that in Revenue s appeal decision on limitation was not challenged; the appeal is rejected. On clandestine removal ld. Counsel also referred to the judgment of this Tribunal in the case of CCE v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector has examined all the facts and contentions in detail and had come to the reasonable conclusion in view of these facts and circumstances. 17. We also note that the ld. Collector has also examined the original gate passes retrieved from the files of the assessee and has given reasons for their being with the assessee in majority of the cases. 18. We have also seen the Cross Objections filed by the assessee regarding imposition of penalty. We have also perused the case law cited by the ld. Counsel for the respondent. Looking to all the facts and circumstances of the case, we do not find it to be a fit case even for remand which is the prayer of the appellant inasmuch as all the issues have been dealt with properly on the basis of the evidence that was available on record. Looking to all the facts and circumstances of the case we do not find any infirmity legal or factual in the impugned order. In the circumstances the impugned order is upheld and the appeal is rejected. 19. In so far as cross objections in regard to imposition of penalty is concerned, we find that in RG-1 Register, there is a column for showing semi-finished goods. We note that the ld. Collector has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
