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TMI Blog2010 (11) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... vade the duty, as it is well settled law that nobody can be allowed benefit from his wrong doing - Appeal are dismissed - E/4225/2004 - 804/2010-EX(PB) - Dated:- 23-11-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri R. Santhanam, Advocate, for the Appellant. Shri K.P. Singh, SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts leading to this appeal are, in brief, as under : 1.1 The appellants in their factory at A-2, Phase-II, Noida manufacture Onida brand Colour Television Sets (CTVs) chargeable to central excise duty under sub-heading no. 8528.00 of the Central Excise Tariff Act, 1985. The period of dispute is from May, 1998 to October, 1998 and during this period, the CTVs manufactured by the appellants were sold under the brand name Onida . The brand name Onida was owned by MIRC Electronics Ltd. (hereinafter referred to as MEL ), who were marketing the CTVs under this brand name. Since during the period of dispute, CTVs were covered by MRP based assessment under Section 4A of the Central Excise Act, 1944, the MRP to be declared by the appellant was being informed to them by the MEL from time to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made from Shri Ashok Chawla, Sr. Manager (Finance Accounts) of the appellant company, Shri Vijay Joshi, Vice President (Finance) of the appellant company and M/s. Monica Electronics Ltd., Shri Vijay Kumar, General Manager (Accounts) and Company Secretary of MEL, Shri B.S. Bisht, Regional Manager (North) of MEL, Delhi Branch, Shri Ashok Kumar Gupta, Manager (Commercial) of MEL, Shri Gurmeet Singh, Branch Manager, MEL Ghaziabad Branch and Shri G.K. Mittal, Director of the appellant company and their statements were recorded under Section 14 of the Central Excise Act, 1944, wherein they admitted that the MRP declared by the appellant to the Central Excise Department in respect of certain models was less than the actual MRP at which those models were being sold and that the duty short paid on account of wrong declaration on MRP would be paid to the Department. They also admitted that though the MRP had been lowered in respect of certain models under exchange scheme, in fact, there was no exchange of old TVs and the dealers/distributors did not sell any TVs under exchange scheme or exchange price. The statements of some of the distributors of Onida CTVs were also recorded wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdeclaration of MRP in respect of certain models alongwith interest, on this duty at the applicable rate under Section 11AB ibid; (c) penalty of Rs. 17,04,388/- was imposed on the appellant company under Section 11AC(d) penalty of Rs. 10 Lakh was imposed on MIRC under Rule 209A of Central Excise Rules, 1944 (e) penalty of Rs. 1 Lakh was imposed on Shri Vijay Joshi, Vide President of the appellant company under Rule 209A of the Central Excise Rules, 1944; (f) penalty of Rs. 25,000/- was imposed on Shri Vijay Kumar, General Manager and the Company Secretary of MEL under Rule 209A of the Central Excise Rules, 1944; (g) penalty of Rs. 2 Lakh on Shri G.K. Mittal, Director of the appellant company was imposed under Rule 209A of the Central Excise Rules, 1944 and (h) land, plant, building, machinery was confiscated under Rule 173Q(2) of the Central Excise Rules with option to be redeemed on payment of redemption fine in lieu of confiscation of Rs. 5 Lakh. 1.7 The appeals filed by the appellant company, MEL and Shri G.K. Mittal, Director of the appellant company against the above order of the Joint Commissioner were disposed of by the CCE (Appeals) by common order-in-appeal 212-14/CE/AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh, in respect of certain model of CTVs, a lower MRP had been declared under exchange scheme, in fact there were no sales under exchange scheme; and (c) the allegation of misdeclaration of MRP in respect of certain models is supported by the evidence in the form of statements of various officers/employees of the appellant company, MEL and of their distributors and dealers. 3. We have considered the submissions from both the sides and perused the records. The first component of duty demand is Rs. 1,54,575/- in respect of 141 CTVs found short vis-a-vis the balance in the RG-I register at the time of stock taking of the finished goods by the officers on 10-12-98. The stock taking had been conducted in presence of Shri Ashok Chawla, Senior Manager (Finance Accounts) and at that time, he admitted the shortage and debited the duty on the spot in the PLA and RG.23A Part-II Register. So far no explanation for this shortage has been given and the same has been admitted. In view of this, the appellant s plea that there was no shortage is totally un-acceptable. Therefore, we do not find any infirmity in the impugned order upholding the duty demand of Rs. 1,54,575/- in respect of 141 shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying upon the Apex Court judgment in the case of State of Mysore v. Shibabsuppa reported in 1963 AIR page 375, has held that in quasi judicial proceedings the authorities are not bound by the strict rules of evidence and procedure and that in all the cases, the cross examination need not be granted, as it depends on the circumstances of each case. Therefore, just because the cross examination of the above mentioned persons were not allowed, it does not diminish the evidentiary value of their statements. From these statements, it is clear that in respect of certain models of CTVs, though lower MRP had been declared to the central excise department under exchange scheme, those models were never sold under that exchange scheme at lower prices but were sold at the usual higher price, even though the assessable value for payment of duty had been determined on the basis of lower MRP and the appellant company had knowledge about this. Just because during the period of dispute, there was no provision in Section 4A for enhancing the declared MRP, if the same was not found to be correct, it does not mean that during that period, an assessee coming within the purview of Section 4A was free ..... X X X X Extracts X X X X X X X X Extracts X X X X
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