TMI Blog2002 (11) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate, submitted that the Appellants manufactured latex foam articles in village Nagli Sakravat; that they availed the benefit of Notification No. 80/80-C.E., dated 19-6-80 and 83/83-C.E., dated 1-3-1983 under which first clearances of the specified goods were exempted up to an aggregate value of Rs. 7.5 lakhs; that on 6-3-1984, the Central Excise Officers intercepted a tempo in transit loaded with a consignment of goods cleared from their factory; that the driver on demand produced the challan; that the officers visited their factory and took possession of the various accounts sale bills and challans under which goods were despatched during 1983-84; that a show cause notice dated 21-7-1984 was issued to them alleging clearance of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal remanded the matter that it has been held by the Tribunal in the case of Himalaya Textiles Dyes v. CCE, New Delhi, [1996 (81) E.L.T. 269 (T) = 1995 (11) RLT 499 (CEGAT)] that in view of the delay in adjudication proceedings it has to be held that the Department has failed to prove the charges and the Appellant s evidence merits consideration. Reliance has also been placed on the decision in the case of Bhagsons Paint Industries (India) v. CCE, New Delhi, [1996 (88) E.L.T. 400 (T) = 1996 (17) RLT 886 (CEGAT)] wherein the Adjudication Order was set aside by the Tribunal on the ground of adjudication after a long delay of nine years observing that when no specific time frame is prescribed by the law for the exercise of a certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e correct to add their value. 4.1 Countering the arguments, Shri Atul Dixit, learned SDR, submitted that the matter has been adjudicated by the Department three times since the issue of show cause notice; that the Tribunal remanded the matter second time vide Order dated 28-6-91 for judging the capacity of the Appellants to manufacture and to consider the Certificate of Technical person produced for the first time by the Appellants before the Tribunal only; that it was incumbent on the Appellants to submit their detailed submissions and the said certificate before the Adjudicating Authority immediately after the matter was remanded by the Tribunal; that Appellants had not done so and as such they cannot now claim that the adjudication pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized that the procedure to receive back the rejected goods into the factory had not been followed by the Appellants; that the Tribunal in Order dated 29-4-91 has noted the same and observed that onus has shifted to the Appellants to show that the quantity of goods produced, accounted for and cleared on completion of necessary formalities. 4.4 In reply the learned Advocate referred to the decision in the case of Hindustan Lever Ltd. v. CCE, Bombay, 1998 (103) E.L.T. 492(T) wherein it has been held that adjudication order passed after long delay is unsustainable. 5. We have considered the submissions of both the sides. One of the main contention of the Appellants is that as the Commissioner has adjudicated the matter after more than 10 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remand order passed by the Tribunal. On the other hand when the Commissioner took the adjudication of the matter the letters intimating the date of hearing sent to the Appellants were received back undelivered from the postal authorities. Further, it was on the initiative of the Department the Range Supdt. was directed to deliver the letter at the residence of one of the Appellants. We, therefore, do not find any reason to find the order unsustainable on the ground of delay. Further, the Tribunal in the case of Hindustan Lever Ltd. (supra) relied upon by the learned Advocate, has held that the Central Excise Act does not impose any time-limit for conclusion of the adjudication proceedings. The Tribunal is a creature of the statute and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions. Nothing has been brought on record by the Appellants to prove that whatever was cleared by them was the rejected goods after re-processing. We also agree with the learned SDR s submission that the certificate was given by the Chartered Engineer in June, 1990 whereas the demand related to the period 1983-84 and the show cause notice was issued in 1985. Certainly a certificate obtained after 6 years of the event cannot accurately describe the status of machine or machinery at the relevant time. We, therefore, find no reason to interfere with the demand confirmed against them. However, we find that the amount of penalty imposed is on the higher side and accordingly we reduce the penalty to Rs. 2 lakhs. But for this modification the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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