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TMI Blog2001 (5) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rules, 1944 (for short "Rules") read with proviso to Section 11A(1) of Central Excise Act, 1944 (for short "Act"); (2) imposing mandatory penalty of Rs. 33 lakhs on the assessee under Section 11AC of the Act since the duty had been evaded by suppression of facts. The assessee has also been directed to pay interest in terms of Section 11AB of Act; (3) imposing penalty of Rs. 1 lakh on the assessee under Rule 173Q of the Rules. (4) imposing a penalty of Rs. 2 lakhs on Mr. Syed Zaki Ishrati, MD under Rule 209A of the Rules; (5) imposing a penalty of Rs. 1 lakh on Mr. Sharad Upadhyay, Accountant, under Rule 209A of the Rules; and (6) imposing a penalty of Rs. 1 lakh on Mr. Faiyaz Ahmed, Manager under Rule 209A of the Rules and imposing a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of India Rules" which definition is reproduced below : "'Article' means any article (other than ornaments) in a finished form made or manufactured from or containing gold and including parts of any broken article but does not include primary gold." 3. The above definition is pari materia to the definition of the expression 'article' as contained in the existing Central Excise Notification No. 54/95-C.E., dated 16-3-94 (Explanation (iii) to the Notification) which is also reproduced as under :- "'Article' in relation to gold shall mean anything (other than ornaments), in a finished form, made of, manufactured from or containing gold and includes any gold coin or broken gold, that is to say, gold in any unfinished or semi-finishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as requested to adjourn the hearing since a similar matter was pending decision before the Hon'ble Tribunal. The Commissioner conceding to the request of the appellant adjourned the matter. However, to the utter surprise of the appellants, they received the impugned order on 17-2-2000 passed ex-parte by the Commissioner even without prior informing the appellants of his decision to proceed ex-parte. In the impugned order, the Commissioner rejected all the contentions made by the appellants and confirmed the penalty and the demand of duty raised on the appellants. As per the appellants the entire demand is barred by limitation. It is based on three statements which are not supported by any queries from four Ferozabad parties whose names appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 110 of Customs Act, 1962 and the jeep valued at Rs. 2,25,000/- under a Recovery Memo dated 10-8-94. Under the follow up action, the team of officers visited the factory premises and the Sales Depot situated at Agra and at Ferozabad on 10-8-94 and 11-8-94 respectively. The officers also effected the seizure of the said excisable goods at both the premises. The show cause notice for the seizures effected in Transit, Factory premises and at Sales Depot were issued separately and seizure cases were decided by the Department. The Commissioner (Appeals) Central Excise Allahabad in his Order-in-Appeal held that the excisable goods being manufactured by the appellants were classifiable under Chapter sub-heading 3207 and not unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seven chits have not been verified from the handwriting expert and it is not known from where they have been recovered by the Department. Since they did not contain the vehicle number, it is not clear whether they belonged to the assessees or to some other party. Three different figures of the value of the clandestine clearances have been given in the Show cause notice which show that the Department is itself unsure of the figures. 7. The Department has justified the demand of duty and the imposition of penalty for the following reasons :- (1) That the final product ceramic colours manufactured by the assessee fall under Chapter 32 and not under Chapter 71 and for this reason these final products are not exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant cases. As regards the issue of not being sure of the value of the clandestine clearance, the Commissioner of Central Excise, Kanpur has clearly stated while dealing issue No. 6 that Department is actually quite sure of the clandestine clearances which is Rs. 1.6 crore and this figure of Rs. 1.6 crore is specifically mentioned in the show cause notice on the basis of which duty of Rs. 33 lakhs has been demanded. Ld. Counsel for the appellants has clearly contended that the Department's case is only on the basis of statements of employees of the appellants and no corroborative evidence is available with the Department. The seven chits which show the clandestine clearances have not been corroborated. 9. From the above, it will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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