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TMI Blog1980 (11) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been removed in excess "without payment of Central Excise duty amounting to Rs. 1,11,161.56 and without cover of any gate pass". It was further stated that the manufacture of these excess products had also not been recorded in the excise records maintained by the petitioner. The petitioner was, accordingly, asked to show cause as to why penalty should not be levied on it under Rules 9, 52A and 226 of the Central Excise Rules and, further, why duty on 2,76,164,500 Kgs of Mill Board and Grey Board should not be levied. 4. A reply dated 13th February, 1967 was sent, on behalf of the petitioner, through their lawyers. It was, inter alia, contended in the said reply that the show cause notice was issued without jurisdiction inasmuch as the claim was made beyond the time provided by Rule 10 of the Central Excise Rules and was beyond the scope of Rule 10A of the Rules. It was also denied that there has been any excess manufacture and/or removal from the factory. It was, however, admitted that there was a discrepancy between the actual weighment of the goods in the statutory record and the weighment shown in the sale record. The factors which led to the aforesaid discrepancy was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely order dated 16th May, 1967 was passed by the Collector of Central Excise, Kanpur. In the impugned order it was held that the petitioner had contravened the provisions of Rules 9, 52A and 226 of the Central Excise Rules and had removed 268202 Kg. of mill board and grey board in excess of clearance shown in the Excise records. By the said order the petitioner was required to pay duty amounting to Rs. 1,12,644.84 P. plus special duty of 20% of basic duty. A penalty of Rs. 2,000/- was also imposed on the petitioner. 6. The petitioner filed an appeal to the Central Board of Excise Customs challenging the aforesaid order of the Collector. By order dated 8th March, 1968 the Board confirmed the order of the Collector of Central Excise with regard to the question as to the legality of the aforesaid demand, The petitioner got partial relief as, with regard to the question as to the determination of appropriate duty demanded by the Collector of Central Excise, the Board accepted the contention of the petitioner. 7. Thereafter the petitioner filed a revision petition before the Central Government under Section 36 of the Central Excises Salt Act The petitioner raised the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy or pay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any, or from the date of making the refund. 10-A. Residuary powers for recovery of sums due to Government. - Where these Rules do not make any specified provision for the collection of any duty, or of any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall, on a written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify. 52. Clearance on payment of duty. - When the manufacturer desires to remove goods on payment of duty, either from the place or premises specified under Rule 9 or from a store-room or other place of storage approved by the Collector under Rule 47, he shall make application in triplicate (unless otherwise by rule or order required) to the proper officer in the proper form and shall deliver it to the officer at l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quantity, description or value of the goods which are cleared, Rule 10 would apply. As already observed, a mis-statement can take place only if some state- ment has been made in respect of those goods by the petitioner. The finding of fact of the Excise authorities in this case is that in respect of the goods in question no statement at all was made, either in the excise records or by issuance of the gate pass. This being the case, the provisions of Rule 10 can have no application and the case would be covered by Rule 9(2) or even Rule 10A. 11. It will further be seen that Rule 10 applies only in case of a short-levy. Rule 10 postulates an assessment having been made under Rule 52. Where, however, the goods are removed under Rule 9 without assessment under Rule 52 having taken place, then rule 10 would not be applicable. This clearly follows from the dictum laid down by the Supreme Court in the case of Assistant Collector of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd. - 1978 E.L.T. (J 416) = (1973) 1 S.C.R. 822. It is contended by Shri Arora that there is nothing on record to show as to whether there had been assessment under Rule 52 or not prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. 14. It is then contended by the learned Counsel for the petitioner that its evidence had been rejected on flimsy ground. The adequacy of the material on the basis of which findings of fact are arrived at by the authorities under the Act cannot be gone into in these proceedings under Article 226 of the Constitution. Moreover, the order of the Collector of Central Excise, whose findings have been accepted in appeal and in revision, does not show that the evidence has been rejected on flimsy ground at all. The explanation of the petitioner has been carefully considered and examined by the Collector but was not accepted by him. I do not propose in these proceedings to go into the disputed questions of fact at this stage. 15. It was lastly contended by the learned Counsel that the orders of the Central Board of Excise Customs and the Central Government are non-speaking orders. Relying upon M/s. Travancore Rayons Ltd. v. Union of India and Others, 1978 E.L.T. (J 378) = AIR 1971 S.C. 862, it is contended that the said orders should be quashed. I am unable to agree with this contention. The Collector of Central Excise has given detailed reasons while passing the impugned order a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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