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TMI Blog2008 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... I, in course of de-novo adjudication proceeding in pursuance of Tribunal's Order No. 392/05-C dated 20/4/05 [2005 (190) E.L.T. 97 (Tribunal)]. The adjudicating authority by this order-confirmed the demand of duty amounting to Rs. 92,22,686/- against the appellant company, under proviso to Section 11A (1) of the Central Excise Act, 1944, imposed penalty of Rs. 98,72,686/- on the appellant company under Rule 173 Q (1) of the Central Excise Rules, 1944 and penalty of Rs One lakh each under Rule 209A on Shri T.K. Diwan and Shri D.N. Gupta (Director (Sales) of the appellant company. The period of dispute is from March 1992 to January 1996 and the allegation against the appellants is that during this period, they were evading central excise duty by clearing 'Flush Doors', which were chargeable to duty, without payment of duty by mis-declaring the same as 'Panel Doors' and 'Baton Door', which were fully exempt from duty and in this manner evaded duty amounting to Rs. 88,72,686/-. 1.1 The duty demand of Rs. 3.5 lakh is on account of wrong calculation of duty liability during the year 1992-93, as during that year while the appellants were eligible for full duty exemption under notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e City, Gurgaon; M/s Gulati Glass Plywood House, Gurgaon; M/s DLF Industries Ltd. [Construction Division], Gurgaon; M/s The Dream House Construction, Gurgaon; M/s DLF Universal Ltd., New Delhi; Shri Ram Dayal Singh, a Government construction in Guna (M.P.); M/s S. Kumar Co., Jaipur, M/s Jyoti Swaroop Mittal, Jaipur all of them informed that they had always placed orders with the appellant company for supply of flush doors and had received flush doors and that they had never purchased panel doors from the appellant company. They also produced the purchase orders. Three other builders from Gurgaon-M/s Mehra Construction, Gurgaon, M/s Mehra Builders, Gurgaon and M/s Make Waves Sea Resorts, Gurgaon on inquiry informed that their 50% to 75% of the purchases of Doors from the Appellant's company were of flush doors and only the remaining purchases were of panel doors. As against this, as per the records of the Appellants, their all the sales of doors to the above mentioned builders were of flush doors. (c) In majority of the cases, the Appellants have arranged their clearances in such a way that they first issued the invoices/gate-pass to their godown at "A-168, Mahipalpur Extn., D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been countersigned by the recording officer and hence are not admissible as evidence and (ii) the cross examination of the persons had not been allowed and therefore their statements cannot be relied upon and in this regard reliance was placed on Hon'ble Bombay High Court's judgment in case of FM Potia vs. Dilip Singhji reported in 2000 (126) E.L.T. 107 (Bom). It was pleaded that in view of this, even the duty demand of about Rs. 10 lakhs based on inquiry with the 15 customers is not sustainable, and the entire demand of duty is liable to be set aside. It was emphasized that the burden of providing the allegation of duty evasion against the Appellants is on the Revenue and the Revenue has failed to adduce credible evidence in this regard. 3. Shri Deepak Garg, the learned Departmental Representative emphasized that recovery of flush doors from the tempo while the invoice covering the goods mentioned the same as 'Panel doors' coupled with the fact that at that time, while RG-1 register of the Appellant was showing certain stock of Panel doors, but actually there was no stock of Panel doors, clearly shows that the Appellants while actually manufacturing and clearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors in 50% to 75% of the cases and remaining orders for supply of Panel doors. In view of this, the request for cross examination of the persons who had given the above-mentioned statements was irrelevant and its denial has not resulted in denial of natural justice. We, therefore, hold that all the sales of the Appellants during the period of dispute, to M/s Unibuild Engg. ; M/s Unitech Ltd. ; South City ; M/s United Ltd., Heritage City ; M/s Gulati Glass Plywood ; M/s DLF Industries Ltd. ; M/s The Dream House Construction ; M/s Ansal Housing Construction Ltd. ; M/s DLF Universal Ltd., New Delhi ; Shri Ram Dayal Singh, Govt. Construction, Guna ; M/s S. Kumar Co., Jaipur ; M/s Jyoti Swaroop Mittal, Jaipur ; which in the invoices issued by the Appellants have been shown as of 'Panel doors', or 'Baton doors' shall be treated as of 'Flush doors' and the duty shall be charged accordingly and in respect of Appellant's sales shown to be of 'Panel doors' or 'Baton doors' to M/s Mehra Builders, Gurgaon ; M/s Mehra Contractors, Gurgaon and M/s Make Waves Sea Resorts, Gurgaon during the period of dispute, 75% of the sale value shall be treated as of flush doors and duty charged accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (iv) in the Show Cause Notice dated 30/3/93 issued to the Appellant for change of classification of Block Board, it is clearly mentioned that the Appellant unit is a manufacturer of Block Board, Panel doors, Baton doors, Flush doors and Plywood. (ii) Neither any inquiry has been made with DDA or Haryana Housing Board regarding supply of Panel doors or Baton doors by the Appellant company to them, nor any inquiry has been made with M/s Ply-N-Door Agencies in this regard. No inquiry has been made with the workers of the Appellant company for ascertaining as to whether the unit was manufacturing Panel doors and Baton doors or was manufacturing only Flush doors. Similarly no inquiry has been made with the Jurisdictional Central Excise Officers who had conducted the stock taking for ascertaining as to whether they had seen any stock of Panel doors or Baton doors. (iii) It is not the Revenue's case that the Appellant's factory was not equipped for manufacture of Panel doors or Baton doors. There is no statement of any employee or workers of the factory stating that Panel doors and Baton doors had never been manufactured. 5. In view of the above discussion, the duty demand based ..... X X X X Extracts X X X X X X X X Extracts X X X X
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