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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 ..... 05/Thane-I dated 24.11.2005 passed by the Commissioner, Central Excise, Thane-I whereby the Ld. Commissioner confirmed the demand of excise duty amounting to ₹ 39,78,731/-, demanded interest under Section 11AA, imposed penalty of ₹ 10,00,000/- under Rule 173Q of Central Excise Rules, 1944 and confiscated vehicle and goods with imposition of redemption fine of ₹ 50,000/- and ₹ 35,000/- respectively. 2. The above confirmation was made on the alleged clandestine removal of X-Ray machines by the appellant. For the issuance of show cause notice, various documentary evidences were relied upon which were recovered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challan by the driver of motor vehicle MH-05-3444 with the stamp Exempt under Notification 80/90 . In the statement recorded Shri PK Sinha admitted that they had cleared it without payment of duty, that they were not maintaining the records and could not produce the copies of Delivery Challans and Invoices for the past clearances. Certain records were taken out of the factory premises by their Accountant Shri Kadam, who stated that it was done on the directions of MD Shri Sinha, to their other premises at Mehra Industrial Estate. On visit to that premises the officers found signs of hasty destruction of records like Delivery Challans and Gate passes. It was claimed that they were also trading and doing repairing/servicing 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MS at Bank of Baroda, Dombivili Branch, Jan Kalyan Sahakari Bank Ghatkopar Branch, Corporation Bank Ghatkopar Branch and Citi Bank Nariman Point Branch, showed deposits of ₹ 3,32,21,349/- during the period 1992 to 1996. The total number of X-ray tubes sold by M/s. BEL to M/s PMS from 1992-3 to 3.7.96 were obtained from BEL. During investigations M/s PMS could not give accounts of their purchases, production/manufacture and clearances and sales, or provide any documentary evidence. It was stated that they were not maintaining records as they were under exemption (but being registered with the Central and State Sales Tax, it is not possible that no records were maintained or duplicate copies of invoices, Delivery Challans kept). The statements were submitted by the Appellants M.D. The amount reflected 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 Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly name of Dr. Jha appears at Sr. No.9 10 for different Machines. One single doctor was given multiple quotations but ultimately he decided for one machine suitable for his requirement and budget. No individual doctor would need 2 or more Mobile X ray machines. Therefore figures indicated in the said Annexure do not indicate correct price of the Machines manufactured by the Appellant. 9 (iv) M/s PMS have not submitted at any stage of the proceedings their private records of purchase, receipts of material, production, clearance, sales in trading, manufacturing, or repair and servicing accounts. Instead they claim to furnish Annexure A to their letter dated 28.02.97 as a real and correct statement of their operations. While it was stated that relevant copies of the sale invoices and the delivery challans have now been traced out , these have not been submitted and at other places it has been stated they have reconstructed 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 Pancha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation forms. The Appellant has submitted the acknowledged copy of declarations under Rule 173B and 173C of CER 1944 (Ref. Pages 99 to 102, 126 to 140) of Appeal paper book showing classification and value of the machines manufactured by the Appellant as on 09.08.1996 which has not been rejected by the department. The Appellant has further submitted the copies of quotations, invoices, gate pass Appellants own sale bills showing contemporary as well as their own price of the machines manufactured and cleared by them as well as other manufacturers kept at pages 141 to 156 of the Appeal paper book which has not been considered by the Commissioner on flimsy ground of not having Sr. Nos., etc. The Commissioner has assumed manufacture of machines in the ratio of 1:1 with the X-ray tube received by the Appellant ignoring the breakage and use of x-ray tubes in trading, repair and servicing which the earlier Commissioner has rejected and given abatement to the Appellant as per Para 38-41 of his Order at Pages 24-26 of Additional Paper book on record There is no whisper of examination of voluminous records seized by the department under Panchnama (Re. Pages 93-110 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1995-96 is to be excluded. This finding is in favour of the Appellant 9 (vii) As regards the question of eligibility to the benefit of Notification 175/86 for small scale units it is seen that the Board had pointed out it their order that the exemption is available only to such units as are registered as a SSI with the Director of Industries of the state or Development Commissioner in the Ministry of Industry. But there was nothing on record to establish the eligibility of M/s Picks Medical Systems for exemption as a small Scale unit. M/s Picks Medical Systems have also not furnished any material for claiming the benefit of this exemption. Hence exemption under Notification 175/86 as amended cannot be allowed for 1992-93. 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 Industries in any State or the Development Commissioner (Small Scale Industries) as a small scale industry under the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable even if the unit is not registered as SSI unit. The Commissioner failed to give any finding on these judgments cited before him in the Appellants reply dated 08.07.1997 kept at Page 69-70 of the Additional Paper book submitted to the Bench. Notification 1/93 was amended by Notification 84/93 dated 04.05.93 by which the exemption limit was increased from ₹ 10 lakhs to ₹ 30 lakhs. The Notification kept at Page 93 of Additional Paper Book has not been considered by the Commissioner. The Appellant is therefore eligible for SSI exemption up to 30 lakhs in the year 1993-94 also as against 10 lakhs allowed by the Commissioner No grievance as it is in favour of Appellant. This is repetition of the above in the Order. Hence comments are the same as above. 5. On going through the above reply, we observed that there are indeed inconsistency between the finding given by the Ld. Commissioner in the impugned order and the facts narrated by the appellant in the above reply which is arising from the records seized by the investigation at the time of investigation, therefore now we are convinced that matter needs remand for reconsideration of va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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