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TMI Blog2018 (3) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the appellant and from other places, various statements of appellant,s director and representative were recorded. The appellant throughout from reply to show cause notice stage mainly contested the quantum of clearances of X-Ray Machines, Valuation thereof and SSI exemption. 3. We heard both sides in detail and perused the records. 4. We find that the Ld. Counsel Shri G.B.Yadav strongly submits that the matter should be remanded for reconsideration of overall matter as there are serious inconsistencies in the facts and the findings given by the Ld. Commissioner in the impugned order. When the matter on the last occasion was heard on 25.052017, the following order was passed by the bench of this tribunal vide a miscellaneous order No. M/88550-88551/17/EB dated 25.05.2017. Although the appellant was given opportunity by the Tribunal to explain on each and every count of finding in para 4 of the adjudication order dated 24.11.2005, appellant failed to explain. When Department found several documents were recovered in the course of investigation, neither the appellant could explain on each document used in adjudication nor also was able to explain on each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icing work but no records to that effect were produced or found. Registration was done on 20.12.1995.The Central Excise officers visited on 17.01.1996 i.e. within 28 days of the said registration. The company was new having no regular employee to look after Central Excise work and there was hardly any production other than the goods seized. Since there was no production from 20th December 1995 to 31.12.1995, Nil Return had to be filed in January 1996. Next R.T.12 Return showing production for January was to be filed only in February 1996. Exemption Notification 80/90 was inadvertently written by the staff instead of 1/93 applicable for SSI exemption as the Appellants goods were exempted under Notification 1/93 Since the goods cleared were only parts and exempted under SSI Notification 1/93, Mr. Sinha has correctly stated that goods were cleared without payment of duty. Since no records were maintained at Factory Office at Dombibili, the staff was directed to keep all records at Mehra Industrial Estate Vikroli. The documents destroyed by the staff were those having no Central Excise No., old and of no use after Central Excise Registration a few days back. In fact, the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein includes advances, payments for trading and repairs also. As such it cannot be allocated only towards receipts for sale of machines manufactured by the Appellant. The Appellant does not dispute the fact of receipt total no. of X-ray Tubes. However, all were not used for manufacture of Machines as shown in the statement at Pages 168 of Appeal Paper book and page 85 of the Additional paper book.. All documents were taken over by the department as per panchnama kept at Pages 93-110 of the Additional Paper Book submitted to the Hon'ble Bench 9 (iii) In the absence of records of M/s PMS there are only two undisputed figure i.e. deposits made in the Banks and the number of X-ray tubes purchased from BEL which have been utilized to work out the statement of production and clearances. Further the fact that value of machines is shown on order confirmation forms has not been disputed; SCN takes his value for computing the value of clearances in Annexure B. It is incorrect to say that the two figures are undisputed. The deposits made in the banks seen in Annexure C at pages 61 to 64 of Appeal paper book do not show only the amounts received against sale of X-ray Machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructed' the invoices after contacting their buyers ' in any case neither the complete set nor any privately maintained registers have been furnished. All the records of the Appellants were seized under Panchanama placed at page nos. 93 to 110 of Additional paper book are private records only for purchase, receipt, sale, repair, etc for the period prior to 20.12.1995 when the Appellant got registered with Central Excise. Admittedly, statutory records were found blank whereas the record seized under the said Panchanama within a month of registration are voluminous which the department did not choose to examine and rely upon as they were in favour of appellant. All the Invoices and records referred to in the Appellants letter dated 28.02.1997 followed by letter dated 11.04.1997, 8.07.1997 and 07.11.1997 have been submitted vide Appellant's letter dated 04.06.2005 now as Annexure C (Colly.) at Pages 33 to 85 of Additional Paper book and at Pages 99 to 168 of the Appeal paper book filed in the Tribunal (Exhibits E to R). 9 (v) In reply to the SCN M/s PMS stress that the Department has computed the value of clearance wrongly as value of X-ray machines was Rs. 70,000/-; 1,75,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r book on record There is no whisper of examination of voluminous records seized by the department under Panchnama (Re. Pages 93-110 of Appeal Paper book).Instead unsubstantiated charge is made and duty is clandestine clearance is alleged on conjectures and surmises without bringing any positive evidence on record to prove the allegation. The evidence of Bank deposits, amounts received and so called confirmed Order Forms have been admittedly discarded because duty demand was working out less.( Ref. Para 10-15 of SCN at Pages 52-54 of the Appeal Paper book) Onus of proof for clandestine removal cannot be shifted to the Appellant. It is settled law that the department has to prove clandestine removal with positive evidence. The Appellant has not to prove negative as per judgments at Pages 119-142 of the Additional Paper book Price of goods is artificially calculated based on quotations by ignoring the evidence of contemporaneous price of identical goods. Production is assumed on the basis of receipt of X ray tubes without giving any abatement on account of breakage, trading, and use of tubes in repair &service. The Commissioner has only negative evidence or in fact no eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e industry under the provisions of the Industries (Development and Regulations) At, 1951. However as per Para (2) of the Notification this exemption was allowed to, other than a factory, which is specified in clause (1) of this paragraph, or in the case of first clearances of the specified goods up to an aggregate value not exceeding rupees ten Lakhs from whole of the duty of excise leviable thereon. Since M/s Picks was not registered SSI unit they are entitled to exemption up to Rs. 10 Lacs only. This clause (1) was modified and clause (2) was omitted (with effect from 1.4.94) vide Notification No. 59/94-C.E, dated 1-3-1994 Thus allowing this exemption to manufacturers whose turnover was less than 2 Crore during 93-94. Since as per the Show Cause notice the turn over during 93-94 was less then Rupees Two Crore they are entitled to the benefit of SSI Exemption for 94-95 and 95-96. The SSI exemption No. 175/86 was replaced by exemption NO. 1/93-Central Excises dated the 28th February, 1993 with effect from 1.4.93. As per Para (1) of the Notification No. 1/93 the exemption is available to a factory, which is an undertaking registered with the Director of In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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