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TMI Blog2017 (10) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... all these four inputs mentioned above. After adding the production of these four inputs, viz. rubber, carbon black, electricity and Sulphur, the total comes to 8,22,115.8 Kgs. i.e. 822.12 MTs; if this total production is divided by four, the average production comes to 205.27 MTs. (822.12/4). Consequently, taking this as fair prudent assessment of production, we confirm the demand of Central Excise duty in case of production of 205.27 Mts of tread rubber - The duty in this regard is required to be computed by the original adjudicating authority to whom we are remanding this matter; but only for this limited purpose of quantification of duty. Penalty - Held that: - penalty reduced from ₹ 5 lakhs to ₹ 50,000/-. Appeal allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Commissioner. v. The appellant was also conveyed about the reworked figures of duty demand as ₹ 29,07,800/- as basic excise duty and ₹ 14,53,390/- as special excise duty. vi. The appellant claims that they made the request to the Commissioner to furnish copies of seized records as per the directions of the Tribunal in the order dt. 27/10/1995. The petitioner claimed that the Commissioner gave the details as to how the duty was arrived at without giving the supporting documents and refused the appellant to have the copies of the seized records. vii. Appellant filed writ petition [WP(C) No.27874 of 2006(R)] before the Hon ble High Court of Kerala, where it was admitted by the Assistant Solicitor General for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty of ₹ 5 lakhs against the appellant. ix. The appellant filed a writ petition bearing No.WP(C) 17353 of 2007(W) before the High Court of Kerala. The petitioner also filed the appeal before the Tribunal. x. The appellant claims that Hon ble High Court disposed of the writ petition of the appellant on the ground that they had already filed an appeal before the Tribunal. 3. With above background of facts, both sides have been heard. 4. The learned advocate for the appellant has mainly submitted the following:- i. Relied upon documents were not provided. ii. Production reworked on non-scientific method, despite specific direction. iii. While alleging manufacturing of huge amount of tread ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sulphur as revealed by the accounts maintained by the State Bank of Travancore, their banker and adopting the ratio of 0.5 kg of sulphur for manufacture of 38.5 kgs of tread rubber as confirmed by Shri Immanuel Prakasan, Production in charge of M/s. Calicut Rubber Company at the relevant time in his statement dt. 20/09/1985, further corroborated by statement of Shri K.S. Stephen, Managing Partner of the company vide statement dated 12/08/1985. Thus I hold that the production of tread rubber by M/s. Calicut Rubber Company is 435.050 MTs during the period from August 1980 to August, 1985. However, the appellant is contesting this finding of production of 435.050 MT of tread rubber saying that based only on the consumption of Sulphur, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th them. As per the facts on record and submissions of both the sides, we are of the view that when the Department does not have other documents seized by them, fair assessment of tread rubber manufactured/produced by the appellant could be in terms of average production taking consideration of the figures in case of all these four inputs mentioned above. After adding the production of these four inputs, viz. rubber, carbon black, electricity and Sulphur, the total comes to 8,22,115.8 Kgs. i.e. 822.12 MTs; if this total production is divided by four, the average production comes to 205.27 MTs. (822.12/4). Consequently, taking this as fair prudent assessment of production, we confirm the demand of Central Excise duty in case of production of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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