TMI Blog2003 (12) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Advocate, submitted that M/s. Carbon India, a partnership firm, are engaged in the manufacture and trading of stationery, viz., Type Carbon Paper, Pencil Carbon Paper, Typewriter Ribbon, Sealing Wax, Ink Pad and Paper Pins; that the Revenue has alleged that they had suppressed production of excisable goods and removed the same clandestinely without payment of duty and that they created a dummy unit in the name of M/s. Rohit Enterprises, Appellant No. 2 with a view to avail undue exemption under Notification No. 175/86-C.E., dated 1-3-1986; that the impugned order has been passed only on the basis of entry of sale in their Balance Sheet relating them as sales of the goods manufactured in their factory; that Shri Deepak Agarwal, partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le amount of the Balance Sheet to establish clandestine removal; that the Revenue had no positive direct affirmative evidence to substantiate clandestine manufacture and removal of goods by them beyond declared in R.T. 12 returns. 3. The learned Advocate, further, mentioned that sealing lac sticks were purchased by them from M/s. Prakash Co. which is evident from the sale Bill No. 1, dated 1-10-1989 and Sale Bill No. 2, dated 2-11-1989; He also referred to Form C of Central Sales Tax which reflects sale of sticks to M/s. Dilip Enterprises (Page 68 of Paper Book). He also contended that the sealing wax or sticks are classifiable under Heading 13.01 of the Schedule to the Central Excise Tariff Act for which Tariff rate of duty is nil; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown in Balance Sheet - Rs. 33,44,174/- as against Rs. 31,25,782/- in R.T. 12 return; that the difference is on account of sale of damaged carbon papers under Cash Memo Nos. 46, dated 2-7-1987 and 105, dated 30-3-1988; that these damaged goods were transported under consignment Note Nos. 887, dated 22-7-1988 and 872, dated 30-3-1988 removed to New Delhi. He also mentioned that demand is hit by time limit specified in Section 11A(1) of the Central Excise Act as their trading activities were within the knowledge of the Department. Finally, he submitted that the separate penalty cannot be imposed on a partner as a partnership concern is not a legal person in the eye of law unlike that of a company; that if Rohit Enterprises is regarded by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at part of the sales represented trading sales; that the Commissioner has also observed, from the order passed by ITO, Kanpur, regarding the income-tax for 1989-90, that purchase and sales were not verifiable and that Trade Tax Tribunal in order dated 14-7-1999 had mentioned that since the records had been burnt in fire, the declared invoice could not be accepted. The learned SDR reiterated the findings contained in the impugned order. 6. We have considered the submissions of both the sides. We observe from the perusal of the impugned order that the Commissioner has not accepted the plea of the appellants about purchase of carbon paper from M/s. Ajay Traders on the ground that the consignment notes were dated 28-11-1989, 10-12-1989, 20-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of Deepak Agarwal, partner and K.K. Tripathi. Shri K.K. Tripathi, in his statement dated 3-6-1991, had deposed that Rohit Enterprises did not possess any machine for the manufacture of carbon paper, no technically qualified person had been employed in that unit. The Commissioner has rightly discarded the affidavit of K.K. Tripathi which has been given to the Department after more than one year. Even in the affidavit, he had confirmed that Rohit Enterprises had taken machines from the appelants. This shows that the appellants were having the capacity to manufacture the carbon paper. The finding of the Commissioner that both Sh. K.K. Tripathi and Mrs. Shailja Agarwal had stated that finished goods and raw materials were given back to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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