9911796707
TMI Blog2001 (3) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and 5043 Kgs during 4/95 on payment of central excise duty @ 10% ad valorem. As the quantity cleared as waste seemed quite abnormal when compared to the production of tread rubber the Superintendent of Central Excise issued show cause notice No. 39/95, dated 21-6-1995 demanding differential duty Rs. 66,306/- for the period 12/94 to 3/95 and show cause notice No. 41/95, dated 6-7-1995 demanding differential duty Rs. 30,258/- for the period 4/95 on the belief that the tread rubber was being cleared in the guise of waste rubber compound. The Assistant Commissioner of Central Excise, Kottayam Division confirmed the demands vide common Order-in-Original Nos. 41 42/96, dated 6-7-1995 demanding differential duty Rs. 30,258/- for the period 4/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of vide order No. 3/98, dated 31-3-1998, as per direction in O.P. No. 2658/98 of the Hon ble High Court of Kerala, by directing M/s. Anikon Rubbers to make a pre-deposit of Rs. 38,000/- and they have complied with the same. The appeal filed by the Anikon Rubbers has been decided by the Commissioner (Appeals), Cochin vide Order-in-Appeal No. 47/2000-C.E., dated 5-7-1997. The Commissioner (Appeals) annulled the Order-in-Original Nos. 50/97 and 51/97, dated 26-5-1997 passed by the Asstt. Commissioner of Central Excise, Kottayam Division and ordered to refund the pre-deposit of Rs. 38,000/- to M/s. Anikon Rubbers. 2. Grounds in the Appeal are : (a) During the period June, 94 to April, 95 there was a clearance of 19220 Kgs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) The version of the assessee, M/s. Anikon Rubbers, before Commissioner (Appeals) that the record of personal hearing was not a true version of what he had stated before the original authority is not correct. From the records of Personal Hearing before the original authority it can be seen that the assessee himself had appeared before Assistant Commissioner for PH. The record of PH is on true version of the submission made by the assessee. In the record of PH which is an authentic document in quasi judicial proceeding, the assessee has admitted that he used to manufacture low quality tread rubber and the same was sold showing the description of goods as scrap and waste in the form of strips of rubber compound . He had not poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The account produced revealed that there was such clearance of waste and scrap rubber from June, 1994 to April, 1995 and in the respective RT 12s, the production, clearance and duty paid were shown. This return were accepted by the Department. The Show Cause Notice was issued only on 21-6-1995 covering the period December, 1994 to April, 1995 only. The Form IV Account of rubber compound shows the opening stock of rubber compound, daily manufacture, quantity issued for the manufacture of tread rubber, quantity wasted or destroyed vide column No. 9 of Form IV. In December, 1994 on 20-12-1994 , under this column a quantity of 3159 kgs. of rubber compound is shown as quantity wasted. Similar entries for rubber compound shown as waste in Colu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap could not be proved to be Tread Rubber . The solitary evidence on record of record of personal hearing and statement recorded were not acceptable to the Commissioner to bring home the charge of clearance of tread rubber in the guise of waste scrap . The Commissioner (Appeals) has found the record of personal hearing and the statement to be factually incorrect and extended benefit of doubt to the assessee. No material has been placed before us as to why we should not uphold this conclusions arrived by the Commissioner (Appeals) to be not well founded and why the benefit of doubt should not go to the assessee. (b) As against this, the Commissioner, in appeal before us, is asking us to take cognisance of 163% of waste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence placed on record. (c) No ground has been urged, made, to challenge this findings of the Commissioner (Appeals) that the statements and records are factually inaccurate except the feeble plea of no retraction was made and the statement is voluntary. If that was so, the respondents need not have laboured in this litigation, for last so many years since June, 1994/April, 1995 onwards for amount of Rs. 75,427/- and penalty of Rs. 500/- only. (d) The non filing of an application, for remission under Rule 49, cannot be a ground to determine that what was cleared was not waste, for non filing of such application, penalty could be imposed. We therefore find that a penalty of Rs. 500/- as imposed by the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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