TMI Blog2005 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, it would be pertinent to mention that so far as undervaluation is concerned, it has already been mentioned that the duty was paid as per the Trade Notice issued by the Surat Commissioner, which was based on the CBEC order dated 31-12-1993. The learned counsel has already submitted that imposition of penalty is totally illegal as no specific clause of Rule 173Q(1) of CER of 1944 has been mentioned. We fully agree with the contention of the learned counsel that in the absence of the specific contravention, imposition of penalty is totally vague and not sustainable. We, therefore, set aside the impugned order and allow the appeals filed by the appellants. - HON'BLE KRISHNA KUMAR (J) AND CHITTARANJAN SATAPATHY (T), MEMBERS For the Appellant : S. Suryanarayanan, Adv. For the Respondent : U.H. Jadhav, JDR Order Krishna Kumar, Member (J) 1. The issue relates to illicit removal of processed fabrics. The appeals have been filed by the appellants against the demand of Excise duty of Rs. 24,28,284/- (Rupees Twenty four lakhs twenty eight thousand two hundred eighty four only) + Rs. 1,38,314/- (Rupees One lakh thirty eight thousand three hundred fourteen only) = Rs. 25,76,598/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20-4-1998; whereas in the present case, the period relates to 24-6-96 to 13-9-96 and the Show Cause Notice has been issued dated 27-3-2001. The demand is hopelessely time barred, because the full facts were in the knowledge of the Department when the Show Cause Notice dated 20-4-1998 was adjudicated upon and the period in the present appeal is very well covered in the Show Cause Notice dated 20-4-1998. Therefore, the question of invoking the extended period does not arise in the matter. He submitted that the extended period cannot be invoked; that no evidence has been brought on record to prove the charge of illicit removal; All records of inward and outward processed fabrics in Parag House have been maintained by the Accounts Department of the Company. The inward details of grey fabrics and outward details of processed fabrics had been maintained by the Company, Parag Industries Limited; that no authenticity of alleged record register has been proved by the Department and that the so called register was maintained by the Contractor and the appellants have no concern with the same and the Contractor was entrusted in making the entries therein through the labourers employed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies on the Department. 10. KR Steel Union Private Limited - 1987 (31) E.L.T. 375 (T) : He submitted that evidence sought in the Show Cause Notice is unreliable as the same is based on the conjectures and surmises, since the entire case of the department was based on the alleged register. The appellants had sought for cross-examination of the Panchas which was denied by the Commissioner; that illicit clearances are alleged to have been conducted on 16/17-9-96 and the officers of the Department visited the factory premises on 20-9-96 for follow-up action and drew factual Panchnamas on 20-9-96, as per the Show Cause Notice. The Officers detained certain goods on the ground that they being substituted fabrics on 21-9-96. Again they visited on 12-12-96 and drew on factual Panchnamas and recorded the statement during the period from 16/17-9-96 to 12-12-96. Show Cause Notice dt. 14-3-97 has culminated in the order dated 23-12-98 and Parag Industries Limited have opted for KVSS certificate dated 23-3-99 is available at page 164 of the appeal file. Therefore, the period in dispute was well within the knowledge of the Department and the Show Cause Notice should have been issued within six mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment to bring on record any material corroborating the entries in the register and the statements that the allegation in the Show Cause Notice is nothing but a colourable exercise of the quasi judicial powers; that since the Department could not find any scapegoats to cover up its failures in investigation, they had baselessly on a misconceived perception raised the demand against the appellants without any basis; with regard to charge of under valuation, the learned counsel has submitted Annexure 'C' (had been annexed) with the Show Cause Notice and the said annexure seeks to correlate the grey fabric challan of the processed fabrics and have arrived at the figures of Rs. 1,28,105/- (Rupees One lakh twenty eight thousand one hundred five only). But this demand has been included in the Show Cause Notice presumably because of the higher demand of duty based on the selling price of the processed fabric as per the balance sheet charged under valuation is based on selling price of cut and packed fabrics by the processed fabric being contrary to settled law, is illegal. (Ujagar Prints v. UOI - 1989 (39) E.L.T. 493 (S.C.) - It is held that since the appellants had paid the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
