TMI Blog2005 (8) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Commissioner has determined the duty liability on goods removed without payment of duty at about Rs. 22.07 lakhs. He has also imposed penalties and confiscated eyebrow pencils valued around Rs. 4.5 lakhs. 3. We may take up the appeal of the manufacturer namely M/s. Standard Pencils Pvt. Ltd., first. The main grievance is that the quantification of production has been done without giving any allowance for wastage and process loss. It has been contended that the quantity determined and duty demanded are high for this reason. It is the contention of the appellant that if process loss of 8% and wastage of 3% were allowed, it would have been found that there was no clandestine removal at all. To this, the objection of the Revenue is that these claims have been made only to show that there was no clandestine removal and that this contention cannot find acceptance since, after considering the evidence in the case, the Tribunal had upheld the charges of clandestine production and removal. It is also being submitted that the claims are being made without any supporting evidence. 4. The direction of the Tribunal on the question of quantification is as under :- 14 (i) We hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides. We may note the ruling of the Hon ble Supreme Court on this issue in the case of State of West Bengal v. Hemant Kumar , Ors./AIR 1966 SC 1061. We read the relevant para: 14. Before proceeding with these arguments in detail, we can dispose of second contention very shortly. This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with a decision rendered without jurisdiction. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4-4-1952 had ample jurisdiction to decide the case and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dated 4-4-1952 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not . 8. To the same effect is the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion were seized on 5-12-1990/February/March -1991 from five different premises and the Commissioner has confiscated the goods and imposed a common redemption fine of Rs. 1 lakh. The appellant s contention is that the confiscation is contrary to the finding on evasion of duty. It is being submitted that according to duty evasion determined in the order, no duty liability arose for the year 1989-90 and 1990-91 and since there is no finding that these goods were not duty paid, they cannot be treated as offending and confiscated. It is also being pointed out that since the goods were confiscated from different parties, each consignment was required to be dealt with separately. There is merit in these contentions of the appellant. Since the seizures were effected towards the end of 1990 and first quarter of 1991 and since there was no duty demand for the financial years of which these periods form part, these consignments prima facie cannot be held as offending. Therefore, relief is warranted in regard to confiscation and redemption fine on these goods. Accordingly, their confiscation and redemption fine are set aside. 10. The last submission of the appellant is with regard to the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered that the quantity of eyebrow pencil removed without payment of duty be worked out on the basis of raw materials indicated in the raw materials accounts. It is the assessee s submission that no other material could be gone into in view of the specific direction in the remand order. 14. We find that the authenticity of the raw material account kept by the assessee was a specific issue before the Tribunal in the first appeal. The Tribunal observed as under in para 7 7.1. We read those paras: 7. The question, therefore, that arises is whether demand of duty relating to eyebrow pencils is to be based on the quantity worked out from the raw material register or entire quantity of kumkum pencil as indicated in the sales invoices is to be taken as the basis, on the assumption that such quantity in fact was only eyebrow pencils. Collector in Para 31 of his order has observed: - It is seen from the Raw Material Stock Register maintained by SPPL that the said 4 raw materials required for manufacture of eyebrow pencils had been regularly consumed by SPPL during the period relevant to this case (i.e., from 1-4-1986 to 3-12-1990) Shri Ranganathan, the Storekeeper had stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
