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TMI Blog2007 (1) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... g 13,150 kgs of man-made yarn of polyester/viscose blend of the petitioner company was available. Since the transporters could not produce any documentary evidence to show that the said blended yarn had discharged the Central Excise duty, the goods were detained. The authorities also took possession of certain documents. Samples were drawn from the detained goods and sent for chemical analysis. On the same day, i.e., on 15-1-1986 the respondents detained 20 bags of polyester/viscose yarn; 3 bags of spun yarn; and 28 bags of spun yarn tex from the processing unit of the petitioner's mill at Dahisar, Bombay. Representative samples were drawn and sent for chemical analysis. The petitioner's mill, on 4-3-1986 produced copies of relevant gate passes under which goods were sent through their transporters - Kerala Transport Company and goods which were available in the processing unit originally cleared from the petitioner's mill at Coimbatore, except lot Nos. 769 and 1010. The test report received from the chemical analyst confirmed the description declared by the petitioner's mills in the relevant document. All the lots except lots Nos. 769 and 1010 were released. The test report in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di adopted by the mill was to issue proper delivery orders and invoices showing correct description of the goods to their customers and maintain a separate set of invoices having the same invoice numbers and giving the wrong description of the yarn for office purpose. In the invoices, recovered from the traders the duty has been correctly shown as Rs. 11.25 per kg as recoverable on the said yarn and the duty is also recovered as such from the traders separately. However, in the invoices issued by the mill in respect of the very same goods lesser rate of duty has been paid as if the goods were SF yarn. Show cause notices were issued on the above said grounds calling for the petitioner to show cause as to why the differential excise duty should not be recovered and as to why the goods should not be confiscated and penalty under the provisions of the Act should not be levied. 4. On adjudication, it was confirmed that the petitioner was adopting a modus operandi of issuing more than one set of bills to the dealers at Bombay and keeping another set of invoice in their Bombay office, which is in tandem with their blend cleared from coimbatore mill and that the petitioner was adopting d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal under those rules : Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. 7. I am not able to concur with the submission made on behalf of the petitioner. The second respondent has not rested its finding solely on the finding of non-maintenance of private records or blow room practice. Further, that reasoning stated is not a conclusive finding. The Tribunal, after setting out all the arguments advanced on either side, has recorded a finding to the effect that the Tribunal could not subscribe to the main defence of the petitioner that the invoice issued describing the product as P/V yarn were actually for SF yarn because of the collusion between their manager Sri Ramchandran and some other customers on the premise that it was difficult to believe that when a company had posted their resident Director Sri C.D. Memon at their Bombay office, in the normal course of duty he wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no occasion for the Tribunal to observe the same and thus the said observation is invited by the petitioner. Hence, this Court is of the considered view that the above referred to finding recorded by the Tribunal is not in violation of Rule 10 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 and the contention that the second respondent completely rested its finding on a different ground and the petitioner was not given an opportunity to rebut the same falls to ground. 9. Learned Counsel relied on the case of Union of India v. M/s. Chaturbhai M. Patel Co., AIR 1976 SC 712. That was a case filed for damages against the defendant Union of India under Section 83(f) of the Railways Act on the allegation that the plaintiff therein despatched consignment containing tobacco at Banaras for Gaya in Bihar for delivery to the plaintiff company and due to negligence of the railways, the identical goods despatched by the plaintiff did not reach the consignee at Gaya, but the goods containing inferior type of tobacco reached there which caused serious loss to the plaintiff. In the above said facts of the case, the Supreme Court upheld the finding of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence by the Court in the writ jurisdiction. 12. Now let me come to the writ petitions in respect of rejection of reference, Section 35G(1) of the Central Excises and Salt Act, 1944 provides as follows : 35G. Statement of case to High Court :-- (1) The Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under Section 35C (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the applic ..... 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