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TMI Blog2015 (10) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity for the current period. The audit is mainly based on the examination of records though the department has not taken the statement of the manufacturer of the contractor. Therefore, here it is not binding on the Department to produce some extra evidence regarding the difference in quantity of two documents namely ‘private Production Register’ and the RG-I Register. As the matter concerns with the past production and clearance, the Department can not always find such goods and produce before the adjudication. “Private production Register” cannot be questioned for the entries made therein when the manufacturer appellant themselves came forward to give explanation about the same through their letter dated 7.1.2005 mentioned above. The manufacturer appellant has not stated that the entries made there are faulty or erroneous. They only have tried to explain through the letter dated 7.1.2005 the difference in the quantities of entries made in the said private register and RG-I register, though it was not found acceptable. - No other option but to confirm the liability of payment of Central Excise Duty along with interest against the appellant for the subject production of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere receiving the raw material for the same. He points out that the audit was done in December-January 2003-04; they were issued show-cause notice on 13.12.2008 which was received on 03.01.2009 by them. He pleads that show-cause notice is beyond limitation and at least for the month of November 2003, the period is beyond the period of five years that cannot be taken into account for the liability of Central Excise duty against the appellant as per Central Excise Law. 2.2 Learned advocate argues that though there is difference between the entries in private register and the entries in the RG-I register, this difference is mainly on account of their job work and for the said job work, duty was payable at the end of principal manufacturer. He also pleads that this private register is not maintained by them. It is maintained by their contractor. 3. Learned Commissioner (A.R.) for the department, Shri Ajay Saxena vehemently argues that the appellant has not been able to explain the difference in quantities between the private register (which the appellant argues that it was maintained by their contractors) and the entries in the RG-I register. The learned A.R. argues that this di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of sacks manufactured nor appellants have any evidence to show that sacks were manufactured by them on job work basis. As regards time limit, we find that the submission of the learned AR are correct and the demand for the month of November will have to be excluded. 4. I have carefully considered the submissions of both parties mentioned above. The learned advocate for the appellant says that private production register (which the learned advocate later argues that it not a production register but is just a small book containing some leaves ) is not their document and they are not supposed to give any clarification on that. It is very strange that the manufacturing unit claims to do job work which job work was being done by the contractor hired by them but on the other hand they claim that they were not maintaining any records for the job work. Further, during the audit done by the Central Excise Department, the same private register ( small book containing leaves ) was produced by the appellant before the audit officers of the Central Excise department. About the contents of the same private register , the appellant themselves say that they had written a letter d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; therefore, requires to be excluded from their liability of payment of central excise duty. Regarding this submission, the learned A.R. for the respondent also fairly agrees that this period is beyond the period of five years from the date of the show-cause notice. Therefore, one has to accept that the liability of payment of central excise duty for this period against the appellant has to be excluded as per the provisions of law of Central Excise. 6. From the above analyses and discussion, I am of the considered view that the appellant has not been able to substantiate their pleading and the argument that they did not manufacture the subject goods mentioned during the period from November 2003 to January 2004 which have been called as the difference between RG-I Register and private production register . When there has not been any evidence of payment of duty for the said quantity of goods and there could not be any possibility of such evidence also, when there are no entries in the RG-I register for such quantities of goods produced, then certainly it is the liability of the appellant to make the payment of duty of central excise under the law of Central Excise and make goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 7.1.2005 mentioned above. The manufacturer appellant has not stated that the entries made there are faulty or erroneous. They only have tried to explain through the letter dated 7.1.2005 the difference in the quantities of entries made in the said private register and RG-I register, though it was not found acceptable. I do not find any need for further supporting evidences when the appellant s job work challans produced before the original adjudicating authority did not mention about any of the final product namely HDPE woven BAGS/SACKS, thus clearly indicating that there was no job work taken up for manufacture of HDPE woven BAGS/SACKS. 7.3 Here I would like to refer to the decision given by the Hon ble High court of Madras in the case of M/s Alagappa Cements P Ltd Vs CEGAT CHENNAI CCE Trichy [2010-TIOL-770-HC-MAD-CX] wherein Hon ble High Court says that when facts are otherwise proving clandestine removal there is no need of further producing positive proof by the department. The Hon ble Madras High court in this case has inter alia stated as follows:- 6.....We fail to understand as to how the appellant is justified in contending that in the absence of posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Tribunal. Hence, the same is hereby sustained alongwith the reasons mentioned therein. 8. Based on the above facts, discussion and the case laws quoted above, I do not have any other option but to confirm the liability of payment of Central Excise Duty along with interest against the appellant for the subject production of the goods except for the production made during the period of November 2003, which has been found to be beyond the time limit of five years from the relevant date under provisions of Section 11 AC of Central Excise Act, 1944 read with the provisions of Section 11AB of the Central Excise Act 1944. 9. The appellant is also liable to the penalty equivalent to the duty confirmed above under Section 11 AC of the Central Excise Act 1944, but will have the benefit of reduction in penalty to the extent of 75% i.e. they will pay the penalty of only 25% of the duty confirmed if the same is paid along with interest within the period of 30 days from the day, when they are informed by the department about their exact liability of confirmed duty with interest. The department is also hereby ordered to inform the manufacturer appellant within two weeks of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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