9911796707
TMI Blog1989 (2) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-81, for which no accounts have been maintained as required under the Rules. (2) The assessee is receiving Glass Tubings required for Electric Bulbs under Chapter X procedure. During the years 1979-80 and 1980-81, the assessee had received 11,712 kgs. and 8,581 kgs. of Glass tubing, out of which as per the DGTD formula, the production should have been 11,71,200 and 8,58,100 Electric Bulbs respectively during the above years. But on going through the RGI register for the period in question it is seen that the quantity shown as produced is only 8,76,190 and 6,81,622 Nos. respectively leaving a sizeable difference. (3) From the purchase invoices it could be seen that the assessee had purchased 22,14,235 Nos. and 10,70,250 Nos. of Tungsten Filaments during 1979-1980 and 1980-1981 respectively. According to the DGTD formula the production out of these filaments should have been 19,25,421 Nos. and 9,30,652 Nos. respectively. From the RG-I record it could be seen that the production recorded therein is far below the formula. It is also seen that the assessee has also not maintained any private records regarding the purchase and consumption of the filaments, and then the balance sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crutiny of the statements of raw material given to the Bank during the period 8.6.1980 to 30.3.1981 with the Form IV accounts it was seen that the Balance reporting to the State Bank of India, Pune is more than the balance shown in form IV register. (7) On scrutiny of the invoices for the years 1979-1980 and 1980-1981 it was seen that the assessee have sold 9,28,196 and 6,18,722 Electric bulbs on invoices against the clearances of 8,62,090 and 6,19,809 Electric Bulbs on Gate Passes. (8) Scrutiny of the electricity consumption during the period from 1977-1978 to 1980-1981 revealed that though the production was 57 electric bulbs per unit consumption of electricity in 1977-1978 the same has come down to the tune of 34/35/36 during the subsequent years, which substantiates the allegation of suppression of production. 2. Adjudication proceedings were initiated by the Collector which resulted in the foresaid order of the Collector, against which the appellants have come in appeal. 3. Shri N.D. Khosla, appearing for the appellants, contended as below with regard each of the discrepancies alleged by the department: (i) As regards the non-accountal of caps, it is pleaded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout any basis. He also contended that till date even before the Tribunal, the department had not produced any evidence to show that in similarly placed small scale unit the losses noticed is only to the extent of 20%, as has been held by the Collector. On the contrary, the appellants have produced positive evidences in the form of losses from the small scale units showing the percentage of losses of glass shells, ranged from 20% to 40% depending on the various factors. In these circumstances, he pleaded that the Collectors findings allowing only 20% towards losses/breakages and demanding duty on the rest, although they have been removed without payment of duly, is not legally proper and sustainable. (iv) As regards the allegation that they have not accounted for 5460 kgs. of glass shells, Shri Khosla pointed out that the shells were purchased from the BPT at a nominal price of ₹ 2000/-. They hoped to recover some of the shells which could be utilised for manufacture of bulbs. But on receipt of the said shells in their factory, inspection was carried out which revealed that the entire stock was unfit for use and hence the said shells were not accounted for in the raw mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position furnished to them includes raw materials in process and also raw material in respect of which they retired the documents. He also contended that DGTD certificate clearly shows the variations in respect of the quantum of losses between the organised unit and small scale unit is only marginal whereas the Collector has allowed 20% towards breakage. The order of the Collector, is reasonable and is therefore sustainable both on the basis of facts and law. 4. After hearing both the sides and perusing the available records, we find that the Collector has only framed 3 issues as proceeded to consider the allegation of clandestine removal. The issues as made out by him in the order-in-original are as below: (i) whether the entire raw material has been accounted for or not; (ii) the quantum of breakages of 31% to 33% as claimed to be natural are correct and are allowable or otherwise; and (iii) whether the raw material in transit can taken as pledge for the bank statement. 5. On consideration of these issues, the Collector has come to the conclusion that here is a clandestine removal. After considering these issues the Collector has come to the following conclusion: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these raw materials do not lead to a conclusive evidence regarding unaccounted production. Now the question is comparison of invoices with the removals under Gale pass. On this ground, discrepancy noticed as indicated in the show cause is as below: 8. From the above, it is observed that only in regard to the year 1979-1980 more sales under invoice than the sales under Gate pass have been effected, in respect of which the appellants have referred to the invoice No. 10A dated 1.4.1979 showing the sales effected from the old stocks. This fact has not been considered and commented upon in the Collector's findings. In view of this, the evidence produced in the form of invoice covering the sales effected from the duly paid godown, remains unrebutted. 9. As regards the comparison of electric consumption vis-a-vis production, the explanation offered again remains unrebutted. The explanation is that they had sub-let a part of their factory to another unit and electric consumption is in respect of both the units. Hence it is pleaded that the comparison of production of both the units with the electric consumption is called for. In view of the fact that these essential factors have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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