TMI Blog1991 (10) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... rubber latex foam mattresses, pillows and cushion falling under sub-heading 9494.00 of the Central Excise Tariff Act, 1985 without payment of duty, without issue of gate passes and without following the Central Excise formalities. It was further alleged that the statutory records were not properly maintained and production was suppressed and there was an excess quantity of goods such as bus seats, car seats, cycle seats, etc. falling under Tariff Item 4016.11 in a quantity of 1566.500 kgs. Besides this there was excess quantity of 6065.500 kgs. of latex foam sponge pieces coming under sub-heading 4004.00 and 2300.000 kgs of Trimmings of latex foam sponge and overflow waste falling under Central Excise Tariff sub-heading 4004.00. The procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponge are concerned, the Department has only levied a fine of Rs. 10,000 and the learned counsel submitted that the stock got accumulated for a long time and there can be no suppression attributable to the appellant. The learned counsel further submitted that even though the difference in duty is sought to be worked out from February 1988 to January 1989 nothing specific has been stated as to how the period has been worked out. It was, therefore, submitted that the impugned order is not sustainable in law more particularly when the basis on which the quantum of duty worked out is not clearly indicated in the order and the shortage is not set off against the excess. 4. Shri Gregory, the learned SDR, submitted that even by giving a set-of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 kgs. and as rightly pointed out by the learned SDR, the appellant would be liable to pay duty in regard to the same. It should be noted in this connection that merely because of excess and shortage in the above factual background, it would be difficult to hold that the appellant must be guilty of suppression of production in regard to mattresses. If one were to take that view, equally one should also go into the question about the excess in other goods viz. bus seats, car seats, etc. which also suffered the same duty. Unfortunately in the impugned order there is no discussion at all much less any finding with reference to the excess. This factual position will have to be construed in the situation when admittedly the Department did not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shortage of about 150 kgs. I am inclined to think that in the interests of justice the matter will have to be remitted to the adjudicating authority for working out the quantum of duty by giving such a set-off and the quantum of penalty will have to be worked out in the light of the duty which the appellant would be eventually liable to pay in the light of what I have stated above. In this view of the matter, without expressing any opinion on the quantum of duty which the appellant is liable to pay, I set aside the impugned order and remit the matter to the original authority for re-adjudication of the issue in accordance with law in respect of mattresses falling under Tariff Heading 9404.00 and other goods viz. bus seats, car seats, cy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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