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TMI Blog1995 (10) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Rs. 5,000/- from the bank guarantee amount in lieu of confiscation. He has also confirmed the duty demand of Rs. 7,93,325.43 and Rs. 47,078.83 leviable on the processed cotton fabrics and processed man made fabrics said to have been cleared under Rule 9(2) of Central Excise Rules, 1944. He has also imposed a penalty of Rs. 5,000/- under Rule 173Q of Central Excise Rules, 1944. 2. The CEGAT in its final order No. 433/95, dated 9-12-1985 in respect of the appellant s case, had observed that at least one and a half years before the visit of the officers (counting by the statement of Smt. Harjeet Kaur relied on by the Collector) the baby boiler had not been used to feed steam to the jiggers; that whether it had been so used during the period prior to that (i.e. upto the end of 1979 approximately) would need further investigations regarding the capacity of the boiler and the number of jiggers installed and used during that period. The party had claimed before the Tribunal in the earlier proceedings that the bleaching machine was only a washing machine; that the officers did not notice the electric motor of 3 H.P. installed on the machine; that this motor was of 1440 RPM; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of exemption under notification, the duty was required to be recomputed. The Tribunal also directed the lower authorities to reconsider the question of quantity value and rate of duty in respect of fabrics processed by the assessee. In view of the above direction of the Tribunal, the Collector directed the Asstt. Collector Central Excise, who had adjudicated the matter earlier to take up the investigation and submit the report to him. The report of the Asstt. Collector was taken into consideration by the learned Collector and passed the impugned order. The appellant before the Collector had submitted that there was no evidence regarding use of baby boiler for feeding steam to the jiggers. They have contended that they had produced purchase bills for fire wood in support of their point that they were heating the water required by the jiggers by using fire wood and therefore, the baby boiler was not capable of heating the enormous quantity of water required for 5 jiggers. They have also stated that this boiler could not be used for fire wood but used for Coke, which they had purchased in small quantities. They had also stated that this baby boiler was used to raise steam for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt dated 10-6-1981 in which he inter alia stated that he had seen the statement dated 10-6-1981 given by his mother Smt. Harjeet Kaur and admitted the facts stated therein as correct except the small detail about the year of the start of the factory. Learned Collector has held that at the time of visit of the officers they did not say that motor was not being used for bleaching purposes. It is only subsequently that they contended that motor had RPM of 1440 and that it could not be used for the purpose of bleaching operation. He has held that this fact could not be verified subsequently because the said motor had ceased to exist and the party had not produced any document as to the RPM of the motor. As regards plea of the exemption under Notification No. 70/69 dated 1-3-1969, the Collector has held that this contention is untenable. He has also rejected the reference of the CEGAT on this point on the ground that the assessee had not supplied any modified figures of clearances and their value on remand from CEGAT. He has confirmed the demand in view of the details of duty liability computed and enclosed with the show cause notice. As regards the reference of the CEGAT regarding samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends that the appellants were not using power but only using traditional wood for process of bleaching. He has stated that the appellant s mother Smt. Harjeet Kaur is an aged lady suffering from cancer and she did not know anything about her appellant s business or manufacturing activity. The departmental official has recorded her statement and relied on the same as gospel-truth to hold that the assessee was using baby boiler to feed steam to the jiggers during the period of one and a half years before the visit of the officers at the end of 1977. He submitted that the Tribunal had remanded the matter by Order No. 433/85. The initial order of the demand had not been carried out by complying the directions of the Tribunal. The Collector passed the order-in-original dated 4-9-1989. The same had been again challenged by the assessee before the Tribunal and the Tribunal by its Order No. 475/89-D, dated 4-9-1989 had remanded the matter again for de novo consideration. He submits that in the present case, the learned Collector had merely confirmed the demand as per order-in-original earlier passed by his predecessor which had been set aside by Order No. 433/85-D. He further submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated the matter for the third time. As can be seen from the records, the ld. Collector has taken more than 4 years to re-adjudicate the present matter. The time lapse from the original proceedings is almost over 10 years. The CEGAT s remand order clearly directed the original authority to investigate as to whether baby boiler was used to feed jiggers during the relevant period. The department has not carried out any investigation on this point, the learned Collector has merely shifted the burden on the assessee and held that they have not proved their case. It has to be noted here that what was required to have been investigated was about the use of electricity. This could have been done by a simple verification with the local electricity office and the departmental officials could have verified from the electricity board s register about the use of the electricity by the assessee during the relevant period. The department has not done this simple exercise of verification despite being remanded. Instead the learned Collector has unfortunately attempted to misread the CEGAT s order. Learned Collector has relied on the statement given by Harjeet Kaur, mother of Gurdeep Singh, ..... 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