TMI Blog2012 (8) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... e challenge at the instance of the appellant-firm is to the Order No. 864/2009-EX, dated 4th November, 2009, (Annexure P-10), passed by the Custom, Excise and Service Tax Appellate Tribunal, New Delhi (in short, the Tribunal ) in Appeal No. E/4672/2004-Ex(BR) [2009 (244) E.L.T. 363 (Tri. - Del.)]. 2. In short, the facts necessary for adjudication as narrated in the appeal are that the appellant-firm has been manufacturing pneumatic tyres and tubes since 1969, in its factory premises situated at G.T. Road, Karnal in respect of which it is holding Central Excise Registration 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 conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11A of the 1944 Act, along with a penalty of Rs. 10,00,000/- under Rule 173Q of the said Rules. The appellant again filed appeal before the Tribunal, challenging the order dated 18-6-2004 but the same did not find favour with the Tribunal and dismissed vide order dated 4-11-2009, Annexure A-10, observing that the appellant had indulged in suppression of production and clandestine removal of goods. 7. It is how the present appeal has been filed by the appellant-firm against the order of the Tribunal, Annexure A-10, raising the following 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 manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty payable by the appellant has been calculated on the assessment of an assumed number of units of tyres, which have neither been traced nor its transfer to any other person proved? (i) Whether the Tribunal erred in not holding that the entirety of the demand was time barred as the SCN had been issued beyond limitation without invoking the proviso to Section 11A of the Central 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 find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 289 (S.C.); J.K. Corporation Ltd. v. Commissioner of C. Ex. Cus. Bhubaneshwar, 2007 (210) E.L.T. 501 (Ori.); Town Municipal Council, Athani v. The Presiding Officer, Labour Courts, Hubli and others, etc. 1969 (1) Supreme Court Cases 873; and Norton Intec 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- Correspondenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Mixing Formulation register maintained by them. (h) The private records like, the Mixing Formulation Register, Batch Register/Sto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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