TMI Blog2005 (10) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... cides and are availing modvat facility. Shri Nand Kishore Aggarwal is the Managing Director and Shri M. S. Malik is Manager. Based on the intelligence that the unit was evading Central Excise duty by clearing pesticides clandestinely and by selling pesticides from their sale depots at higher value than the value at which duty was paid at the time of stock transfer from their factory, investigations were undertaken by the Department. 3. A show cause notice was issued to them on 24-2-99 demanding under Rule 9(2)/Sec. 11A(1) proviso : Rs. 77,294 being duty on pesticides, relating to the clearances from the factory on parallel invoices. Rs. 28,35,559 being duty on finished excisable goods removed between 1-4-97 and 20-8-97 from the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) for goods cleared to Ahmedabad depot Rs. 12,51,372/- 3 Removal against OGP in respect of goods received for repairs Rs. 7,20,901/- 4 Goods removed against OGP's to Bathinda depot Rs. 3,94,320/- 5 Clearances against OGP's for which no specific explanation is available Rs. 4,68,965/- 6 Demand on ground of valuation Rs. 15,27,773/- 7 Clearance of empty drums in which raw material had been received and packed Rs. 1,01,177/- 8 Clearances of farmers and employees Rs. 13,407/- Total demand of duty Rs. 45,55,209/- Penalty on the company under Section 11AC Rs. 45,55,209/- Penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against OGP, and in respect of goods received for repairs by them. It was also noticed that a demand was raised for Rs. 4,68,965/- against the clearances made against OGP for which no specific explanation was forthcoming from the appellants. However. It was also arguned that the Chief Commissioners are authorized to relax condition of Excise Rule 173H vide Circular No. 193/27/96-CX dt. 27-3-96 and hence the non-following of procedure by the appellants can not be taken seriously. It was further contended that the depot price was cum-duty price and according to a decision of the Larger Bench of the Hon'ble Tribunal in the case of Srichakra Tyres - 1999 (108) E.L.T. 361 (Tribunal), duty demanded and paid subsequent to sale of goods to be ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that invoice. The illustrations were also made based on Annexure A of the Chart. It was pointed out that in an invoice, there are 11 entries of the goods whereas OGP issued only four entries of the goods for one goods namely Fenvalerate 20% EC. 13. As regards goods falling at S. No. 2 i.e. returned goods (Annexure B) it was argued that neither OGP nor IGP bore invoices on which the goods were sold or returned. It was also found that stock register was for fresh goods as well as returned goods and on seeing entries in the stock register one cannot make which one is for the fresh goods and which are represented the returned goods. Further there was no movement either in stock register or in any documents furnished regarding returned goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial nature which cannot be overlooked. 15. In view of the facts and circumstances of the case and after hearing both sides, we hold that the appellants have effected clearances of finished excisable goods without payment of duty. Verification of details of OGP's and duty paid invoices clearly indicate that the factory invoice date is different from the date of OGP and hence invoices produced by the appellants against OGP cannot be acceptable especially when they have failed to follow the procedural requirements. 16. In view of the foregoing discussions, we hold that the demand confirmed in the Impugned order by the Commissioner in respect of the following has been correctly made : (a) Demand raised in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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