TMI Blog1988 (5) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 5. The brief facts necessary for the disposal of these appeals are : The appellants M/s. Pratibha Silk Mills (to be hereinafter referred to as Assessee ) were during the relevant period engaged in the manufacture/processing Art Silk Fabrics falling under Tariff Item No. 22(1) (b) of First Schedule to the Central Excises and Salt Act, 1944. On 30-9-1983 the Central Excise Preventive Officers of the Collectorate Headquarters, Baroda visited the factory premises and undertook the scrutiny of the statutory records. Since they found several discrepancies and irregularities they drew up a detailed panchnama. They also recorded statements of the available persons. 6. In the follow up action, the said officers carried out search of the mill premises of M/s. Pratibha Silk Fabrics/Gyanesh Silk Mills, Surat and also searched the premises of M/s. Abhishek Silk Mills, Surat. In both the premises they found certain man-made fabrics not covered by duty paid documents and they seized the fabrics and also recorded the statements of the persons concerned. 7. After the completion of the investigation, a show cause notice dated 22-3-1984 was issued to the assessee alleging contravention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be made. The assessee also relied on the Notification No. 79 of 82 dated 28-2-1982 which prescribed the stage at which the entries in RG-1 was to be made. As per the said notification in respect of man-made fabrics, it is only at half loom stage in respect of grey fabrics and after folding and measurement in respect of processed fabrics. It is true that in the panchnama there is a recital that this quantity was manufactured before the visit of the Central Excise Officers. But then, the assessee had contended that that statement was inserted subsequently by the officers. The Additional Collector in his order did not go into the question as to whether the assessee s contention that those goods were manufactured on 30-9-1983 was correct or not. He categorically recorded a finding that there was no illicit removal. Without considering the merit of the assessee s claim, the Additional Collector was not justified in rejecting the explanation particularly having regard to the stage at which the entry in RG-1 is required to be made for processed man-made fabrics. Therefore, I am inclined to accept the contention of the assessee that the Additional Collector committed an error in holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Collector had directed payment of duty at appropriate leviable rate. The very order of the Additional Collector indicates that there was no positive evidence regarding illicit processing and illicit clearance of the goods covered by 10 challans. Despite such a finding the Additional Collector proceeded to hold that there was removal without payment of duty. This finding is an assumption which the Additional Collector himself had stated that it was a reasonable presumption. It is the department which had alleged that the assessee had received 126 pieces of grey fabrics admeasuring 12,900.75 L. Mtrs. and the same had not been accounted for. The further allegation was that 126 pieces had been clandestinely removed without payment of duty. The initial burden of establishing both the allegations was on the Department. No enquiry had been made from whom those 126 pieces of grey fabrics were received. No enquiry was also made as to whether the persons who had sent those fabrics for processing had received back after processing. In support of their contention the appellants had produced affidavits of the parties who supplied the grey fabrics for processing and also regarding recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was that the duty, if any, should be demanded from the mills from whose premises they were seized and not from the assessee. Their further contention was that the adjudicating authority ought not to have relied on the statements of partners of M/s. Pratibha Silk Mills as well as M/s. Abhishek Silk Mills to demand duty from the appellants. It was also contended that once the excisable goods leave the factory premises there is a presumption as to the payment of duty and that presumption had not been rebutted. 18. Though the arguments addressed on behalf of the assessee appears attractive one cannot loose sight of the fact that M/s. Pratibha and M/s. Abhishek Silk Mills are sister concerns of the assessee. Therefore, if the responsible persons of the said mills at the earliest instance implicated the assessee and have categorically stated that the goods seized from their premises are without gate pass or without payment of duty finding of the Additional Collector in respect of those two quantities cannot be seriously challenged or assailed. I, therefore, confirm the said findings. 19. The only other aspect that remains for consideration is about the prayer of the Collector requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the assessee were either illegal or improper, the Board would be justified in directing the Collector to make an application to the Tribunal for correcting illegality or impropriety. 22A. Since the fine and penalty imposed by the Additional Collector works out more than 200% of the duty attempted to be evaded, I see no justification to enhance the penalty. That apart by reason of my findings the duty liability gets reduced and the fine amount of Rs. 18,000/- required to be set aside. On this ground also there is no good reason to grant the prayer made by the Collector in the appeal. 23. In the result, the appeal filed by the Collector, namely, ED(BOM A11) of 1986 is rejected. 24. The appeal filed by the assessee is allowed in part. The confiscation of 11459 L. Mtrs. seized from the possession of the factory and released on payment of fine of Rs. 18,000/- is set aside. The fine, if paid, shall be refunded to the assessee. The demand of duty made in respect of 12,900.75 L. Mtrs. covered by 10 challans is also set aside. The duty, if paid, shall be refunded to the assessee. In other respects, the order passed by the Additional Collector is confirmed. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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