9911796707
TMI Blog2012 (8) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration Number dated 27-12-1969. Removal of finished goods from the factory of the appellant was subject to strict scrutiny and checking by the 'proper officer' stationed at the unit itself for levy of tax and every clearance was made under the signature of the said officer. The tyres manufactured by the appellant included Animal Driven Vehicle Tyres (for short "ADV Tyres") which were exempted from payment of Central Excise duty during the period under consideration. The appellant-factory had been maintaining all registers required under the 1944 Act and the Rules framed thereunder. 3. The Excise Authorities conducted visits to the factory of the appellant on 21-1-1988 and 4-2-1988 and resumed the Central Excise statutory and other private records. The visiting team also seized tyres and tubes of different sizes and alleged that the same were not accounted for in the R.G-I Register and that 400 x 8 size tyres were mis-declared as 16x4 size tyres. The said authorities made another visit to the factory premises of the appellant on 28-6-1988 and carried out the physical weighment of tyres of certain sizes. A chart indicating measurement of weights of different tyres of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial questions of law, for determination by this Court : (a) Whether the Tribunal's order is perverse and suffers from a complete non-application of mind inasmuch as the Tribunal has failed to appreciate that the entirety of the demand is based on mere presumptive calculations and not on any evidence of clandestine removal? (b) Whether the Tribunal's order is perverse as it has not appreciated that the Respondent had confirmed the demand of differential duty on the basis that the appellant had manufactured huge quantities of 400x8 size tyres whereas the appellant did not even possess the moulds required for such manufacture? (c) Whether the Tribunal's order is perverse as it is completely vitiated on account of a grave error of fact wherein the Tribunal presumed that the Appellant presumed that the Appellant was operating under Self Removal Procedure when the Appellant was in fact under physical control since 1985 and every clearance was made with the permission of a Central Excise Officer stationed at the factory, and not even a single clandestine sale has been unearthed by the investigating agency? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944? (j) Whether the Tribunal failed to appreciate that the onus to prove clandestine removal of goods is much higher in a case of physical control and in the facts of the present case, in the absence of a even a single piece of evidence to establish clandestine sale, the onus had not been discharged by the Department? (k) Whether the Tribunal erred in its finding that the appellant is under a statutory obligation to produce private documents such as the Stock Register and Rubber Board Register or to intimate the Department of their maintenance under Rule 173G, when the Appellant's unit was under physical control during the relevant time? (l) Whether the Tribunal's order is contrary to the principle laid down by the Supreme Court in Oudh Sugar Mills inasmuch as the finding of clandestine removal is based only on presumptive calculations and does not take into account various factors including consumption of other raw materials, electricity, machine capacity, labour etc.? (m) Whether in the absence of any evidence of sale of tyres and tubes purportedly cleared clan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ec Rubbers (P) Ltd. v. Collector of C. Ex., Madras, 2004 (164) E.L.T. 5 (Mad.). 11. We have given our thoughtful consideration to the submissions made by the learned counsel for the appellant. 12. The Adjudicating Authority while passing the order in original dated 18-6-2004 had scrutinized the following documents before arriving at the conclusion that the assessee had clandestinely removed goods from the factory :- "1- Stock Register/Batch Register 2- Monthly returns submitted by the manufacturer in form 'K' to the Rubber Board. 3- Lab. Monthly consumption report of raw material. 4- Rubber Board Register 5- Mixing formulation Register 6- Slips mentioned as Annex. 2(a) to 2(f) of the Show Cause Notice. 7- Typed list showing consumption of RMA & Carbon black per tyre/Tube (Annex. 6) 8- Outstation Register/Stores Register 9- Abrasion Note Book 10- Correspondence of the notices with its consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate use of 12,350 nulkies during the period when only 4350 tubes were shown to have been manufactured. (d) The entries in the abrasion note book on the resting relating to various varieties for the period 20-10-1986 to 3-12-1987 do not match with varieties accounted in the RG-1 register. (e) The appellant has not been able to co-relate the entries in the loose slips with the entries in the statutory records like RG-1 register and gate passes evidencing clearance of the said goods on payment of duty. The appellants have received orders from dealers for supply of tyres which are not shown as accounted in the statutory and have also received payments. (f) The Kacha challans contained code numbers for tyres which were different from code numbers used in statutory records which was uncovered from the dispatch advices with corresponding GR numbers of dispatches from the branch offices. (g) The statutory records maintained by them for excise purposes do not reflect the true position. The appellant has not disclosed the maintenance of private records like Stock Register, Rubber Board ..... X X X X Extracts X X X X X X X X Extracts X X X X
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