9911796707
TMI Blog2000 (1) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... is found that RG1 register was written up to 24-12-93 (OB). Stock position of atomised aluminium powder was 23,399,208,145 and of flake aluminium powder was 1,46,953.397 kgs. On physical verification of stock in the presence of panchas only 23,399.208 and 1,46,983,397 kgs. were found. Atomised aluminium powder was in excess by 11,100,792 kgs worth Rs. 6,21,644/- and flake aluminium powder was short by 23,158,397 kgs worth Rs. 15,74,711/-. Shri Bhagwan Singh could not satisfactorily explain the same. So excess quantity of atomised aluminium powder was seized in the presence of panchas in the reasonable belief it was manufactured without recording in the statutory register/records, for the purpose of their subsequent clandestine removal and was liable for confiscation. Both statutory and private records were seized for verification. Seized records were handed over to Shri Bhagwan Singh for safe custody under supranama. 2. Under Section 14 of Central Excise Act, 1944, statements of Bhagwan Singh, Works Manager, Hemant Anand Jahangirdar, Chief Executive and Authorised Signatory of appellant, were recorded. From the above material it appeared that the appellant had suppressed the prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is duly accounted. There is no question of excess quantity not accounted in RG 1 register. The observation in the impugned order that it might not have been accounted and kept for clandestine removal is without any basis, surmise and conjecture. Regarding the shortage of flake aluminium powder, observation that it is not explained is not correct in view of statement of authorised signatory, works manager of appellant, Bhagwan Singh, in the spot. He has specifically stated that flake aluminium powder was recorded in RG1 register on approximate calculation basis by taking into account the quantity of raw material used, 16000 kgs. of aluminium foil scrap lying on the floor of finishing room was to be taken into account, while arriving the stock of aluminium flake powder. In view of the method adopted for recording production of flake aluminium powder by appellant quantity of 11,100 kgs. of atomised aluminium powder transferred to ballmill and shifted back to atomised aluminium powder plant also had to be taken into account while arriving at the quantity of flake aluminium powder accounted as produced in RG1 register, which is not at all considered in the impugned order. Fact of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Commissioner, letter of Superintendent of Central Excise, Range Bhandara dated 6-10-93 on the basis of audit Note No. 590/93, regarding RG1 production statement, reply by appellant dated 9-10-1993, Gate passes No. 50 dated 10-9-93, 51 dated 17-9-1993, 52 dated 29-9-1993, panchanama dated 24-12-1993. Annexure A and [1991 (52) E.L.T. 145] in the case of New Polymer Industries v. CCE, wherein it is held that seizure not justified, if no clandestine removal of goods is involved under Rule 173Q (para 34) and [1996 (84) E.L.T. 37] Pooja Forge Pvt. Ltd. v. CCE, New Delhi, wherein it is held in para 5 that penalty is sustainable for non-maintenance of RG1 register, and in Para 7 it is held that when the goods are still lying in finishing room and no attempt is made for its removal the confiscation is not sustainable. The appellant has filed a process diagram. They are considered and dealt with in the below paras, impugned order is passed on 9-11-1994. The documents produced now subsequent to that date, cannot be considered, in the absence of any application for production of additional evidence and orders therein. So the affidavits filed which were not before the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y jurisdictional Assistant Collector and compliance report submitted to the headquarters office. The show cause notice is followed as a result of this objection, issued by Collector. 8. In reply to the above show cause notice, which has charged the appellant that it has suppressed the production of atomised aluminium powder 11,100.792 kgs. valued at Rs. 6,21,644/- without accounting for it in statutory records, with the sole intention to evade Central Excise duty, contravening Rules 53, 173G read with Rule 226 of Central Excise Rules, and the seized goods is liable for confiscation under Rule 173Q of Central Excise Rules, and appellant has cleared flake aluminium powder 23258.397 kgs. (found short) valued at Rs. 15,74,771/- involving duty of Rs. 3,93,693/- without payment of the same, and without Central Excise gate passes and contravened Rules 9(1), 49, 52A, 173Q read with Rule 226 of Central Excise Rules, and sought recovery of above duty under Rule 9(2) read with Section 11A of Central Excise Act, and they are also liable to pay penalty under Rule 173Q of Central Excise Rules . Appellant has replied that total stock of flake and atomised powder if considered, discrepancy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant from flake plant could not be confirmed, and non-intimation to Excise department in that regard due to rush of manufacture and dispatch of goods while unprecedent rains lashed and there was fear of spoilage of material in the P F plant, is confirmed as their omission. Both P F plant as well as AAP plant are located at sufficient distance only from safety point of view, but within fenced premises of the company. They did not take it seriously where the goods were. 9. The appellant in the reply has further stated that the procedure followed by them is based on their experience for the last 10 years, and production figures and dispatch figures compared well, after considering stock in the plant, and calculation method followed is already brought to the notice of Range Officers and have been elaborately discussed with the Division Assistant Collector as well as audit party from time to time all these years, which is clearly mentioned in the statement of both Shri Bhagwan Singh and Shri Jahangirdar. The reason for excess stock of around 11 MTs noticed in AAP plant was solely due to transfer of said quantity from P F plant. Due to delay in completion of civil work because of inces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inium powder by preventive staff, which was not accounted for the appellant s case is compounded. There is no written explanation for this shortage nor explained in personal hearing. Procedural difference in recording and reliance of private diaries cannot be accepted. Storage of excisable products in unauthorised place is ordered with a view to exercise effective checks as also to make the party accountable for their day to day production. Taking of lenient view in such a case like this, no party can ever effectively tackle unauthorised storage and thereby clandestine removal with a view to evading duty happens. With these findings the impugned order is passed. 11. Now looking to appeal memorandum, in the light of the other material as narrated in above paras, the impugned order is considered, it is seen that, since the beginning, appellant has adopted his own procedure in recording production in RG1 register, which as observed by Additional Collector in notes of Inspection does not give the correct and complete quantity of production, but is based on the estimated recovery to the extent of 9% of raw material consumed in the process, and complete picture is shown in BSR Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear that appellant is not fair in recording RG1 register and shifting of atomised aluminium powder is unauthorised, and concealed one. These two things go against them, which is admitted. Sri Jahangirdar, Chief Executive and Authorised Signatory has stated that discrepancy in the finished product flake aluminium powder is due to the fact while issuing aluminium scrap for the production of above goods, it will be entered in RG1 register as finished goods. Regarding excess stock of atomised aluminium powder, powder transferred to pyrotechnic and flake plant (P F Plant) was brought back to atomised aluminium powder plant as repair of roofing sheets was going on in P F plant. He can not give the exact date/month of shifting, but it was done to protect from rains. Due to ignorance, they have not intimated the Central Excise department. Seizure at their factory was effected due to their lapse in not following the procedure. He is working in the factory since 1984, and he was authorised to give statement in respect of the factory. 12. The above statements are not retracted. Correctness is denied only in the reply to show cause notice. The above statements contain the admissions in f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
