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TMI Blog2006 (6) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty, to M/s. Moogambigai Soap works, M/s. Priya Soap Works, M/s. Jayam Soap Works, M/s. Ambal Chemicals and M/s. Jaya Detergents (respondents in other appeals). It had further alleged, against M/s. Jaya Soap Works, clandestine removal of detergent cakes also during the above period. Further, it was also alleged that, upon inclusion of unaccounted clearances in the aggregate value of clearances for the years 1988-89, 1989-90 and 1990-91, the aggregate value for each of these years exceeded the limit prescribed under Notification No. 175/86-C.E. (as amended) and hence M/s. Jaya Soap Works were not eligible for SSI exemption for the succeeding year. As against the other respondents, the main allegation raised by the department was that, during the years 1989-90 and 1990-91, they were not eligible for SSI benefit under the above Notification in respect of the detergents (affixed with the brandname belonging to M/s. Jaya Soap Works) cleared without payment of duty inasmuch as, during the said period, the brandname-owner was not eligible for the benefit of the Notification. This allegation was based on para (7) of the Notification as it stood during the said period. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot inspire confidence in our mind and therefore reliance cannot be placed on the same for levy of duty. We are of a view that in such a situation the authorities should have made over the original records which were seized from the appellants in fairness by giving an opportunity to put forth their case. We note that it might be impossible for any person however competent he might be to recollect from memory the past transactions that took place particularly with reference to the quantity of Sulphuric acid supplied, the names of various parties to whom such supplies were made, the date of supply particularly when supplies are affected continuously. We note that the various basic records which have been relied upon by the Department have not been made available to the appellant. We also note that the records of transport of LAB with vehicle numbers were also not made available to the appellant. Likewise in respect of the supplies made by Krishna Industrial Chemicals, reliance has been placed only on the letter of Shri V.S. Krishnan dated 10-5-1991 copy of which was not given to the appellant. In this letter average quantity of Sulphuric acid supplied to appellant Jaya Soap Works has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of detergent cakes, we set aside the impugned orders in respect of the other 5 units also and remanded the issues for re-adjudication, in accordance with law. The Departmental appeals have been filed questioning the legality and correctness of the impugned orders of the Collector seeking confirmation of the duty in full in terms of the show-cause notices besides appropriate penalty relatable to the gravity of offence and the duty sought to be evaded. Since the matter has been remanded for reconsideration in accordance with law for the reasons set out in this order, the appeals filed by the Department would also stand dismissed as all the issues arising for determination will be considered by the adjudicating authority afresh in terms of the order of remand. [emphasis added] 3. The orders impugned in these appeals were passed by the Commissioner pursuant to the above remand order. 4. We have heard learned SDR for the appellant and learned Counsel for M/s. Jaya Soap Works. There was no representation for the other respondents despite notice. Learned SDR reiterated the grounds of these appeals, which themselves are a reproduction of the grounds of review by the Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion now is whether a finding of clandestine manufacture of acid slurry should be recorded against M/s. Jaya Soap Works on the basis of consumption of LAB, the other raw material. Learned Counsel contended that, on this basis, alone, such a finding could not be reached. In this connection, he relied on the following decisions of the Tribunal :- 1. Lili Foam Industries (P) Ltd. v. Collector of Central Excise [1990 (46) E.L.T. 462 (Tribunal)]. 2. V.K. Thampy v. Collector of Central Excise, Kochi [1994 (69) E.L.T. 300 (Tribunal)]. 3. Krishna Bottlers (Vijayawada) Pvt. Ltd. [1999 (32) RLT 845 (CEGAT)]. 4. Brims Products v. Commissioner of Central Excise, Patna [2001 (130) E.L.T. 719 (Tri.-Kolkata) In the case of Lili Foam Industries, the department s allegation against the assessee was that they had clandestinely manufactured polyurethane foam and removed it without payment of duty. A chemical called TDI and another one called Polyether were the essential raw materials required for the manufacture of polyurethane foam. It was contended on behalf of the assessee that, to prove that they had produced a higher quantity of polyurethane foam than what w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clandestine manufacture of acid slurry by the assessee on the sole basis of consumption of LAB. The line of decisions cited by learned Counsel would forcefully repel the appellant s plea. No binding judicial authority to the contra was cited by the appellant. Therefore, following the above case law, we grant the benefit of doubt to M/s. Jaya Soap Works and hold that the Revenue has failed to establish that they had clandestinely manufactured and removed acid slurry during the period of dispute. In the result, the order passed by the Commissioner in favour of M/s. Jaya Soap Works is sustained and Appeal No. E/478/1999 is dismissed. 8. Now that no clandestine manufacture or clearance of acid slurry by M/s. Jaya Soap Works has been found, the aggregate value of clearances of specified goods by them in each of the fiscal years comprised in the period of dispute was within the limit prescribed under Notification No. 175/86-C.E. (as amended) and hence they were eligible for SSI benefit during such period. According to the appellant, the respondents in Appeal Nos. E/476, 477, 479, 480 481/1999 were not eligible for exemption under the above Notification in respect of the detergents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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