TMI Blog2012 (10) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... eding. 2. Appeal No. 670 and 671 are against the same impugned order and filed by the Appellant-Company and by its Managing Director. This matter arises from Show Cause Notice dated 3-7-2001 for clandestine manufacturing activity for the period 26-7-2000 to 5-1-2001. 26-7-2010 was the date on which the stock of finished goods became nil as per their official records. 5-1-2001 is the date of visit by the officers to the factory. 3. Appeal No. 672 and 673 by the Company and the Managing Director are against another impugned order but involving the same appellants and same type of clandestine manufacturing. This matter arises from SCN dated 1-7-2004 issued for clandestine activity for the period 24-6-2000 to 25-7-2000. This is based on records recovered later from the Appellants for the previous period. 4. Appellants were registered as a 100% EOU for manufacture of Needles falling under Heading 9018.32 of Central Excise Tariff, cannulae is one of the major input for manufacturing needles. One cannulae was needed for manufacturing one needle. The facts of Appeal 670/2007 and 671/2007 5. The facts of the case is that when the Central Excise officers visited the factory of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4,00,000/- was imposed as penalty under Section 112 of Customs Act and Rule 209 of C.E. Rules on Shri Nizamuddin, Managing Director. 10. The parties filed appeal with Commissioner (Appeals). On appeal the Commissioner (Appeals) gave the following orders : (A) I do not find any infirmity in the impugned order-in-Original on the issue of (i) Confiscation of 19,48,184 nos of cannulae (ii) Confiscation of 19,87,600 nos of Needles. (iii) Confirmation of demand of Customs duty of Rs. 6,41,401.00 and imposition of penalty of equal amount; and (iv) Penalty of Rs. 4,00,000.00 on the appellant No. 2. Accordingly, the same is upheld on the above counts. (B) However, I find that on the issue of confirmation of demand of Central Excise duty amounting to Rs. 9,92,597.00 and the imposition of penalty of equal amount the Order-in-Original requires to be reconsidered in order to arrive at exact determination of the No. of needles cleared without payment of Central Excise duty and correct assessment of the same by the original adjudicating authority. Accordingly, on this score, the same is remanded back to the Adjudicating Authority. 11. Aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther SCN dated 1-7-2004 issued for clandestine activity for the period 24-6-2000 to 25-7-2000, i.e. for an earlier period, is not maintainable in view of the decision of the Apex Court in Nizam Sugar Factory v. C.C.E. - 2006 (197) E.L.T. 465 (S.C.) According to the appellants such SCN is time barred in view of the said decision. 18. The Revenue on the other hand submits that four months after the appellants had stopped making entries in the official records, when factory is visited by the officers they found raw material and manufactured goods. Their private records showed receipt and issue of main raw material namely, cannulae. So it is very clearly a case where the appellants were clandestinely manufacturing and clearing the goods. The cannulae seized were imported in nature. The appellants are not willing to disclose the source from which the goods were purchased. Since they are hiding the source of cannulae it is very obvious that they had imported it clandestinely. The argument that they had no reason to evade Customs duty is not correct because for availing exemption under 16/2000-Cus., dated 1-3-2000 at S. No. 320, they had to account the goods which being imported in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult to conclude that the goods were smuggled by the appellants. So as far as the Customs duty is concerned we are of the view that the benefit of doubt should go to the appellants. 21. In the matter of excise duty, there is better proof. Unaccounted final products are seized from the possession of the Appellants. Their private records showed receipt and issue of cannulae. Though they claim that they were also trading in that item they do not want to disclose from whom the goods were purchased and to whom the goods were sold. The whole matter is a mystery and a matter of argument only but not supported by any documents. Here the appreciation of the facts leads to the conclusion that the appellants had manufactured the needles as alleged. As a Hundred Percent EOU they were supposed to maintain account of raw materials and finished goods. They preferred to show these items to be nil and to continue manufacturing activity. The argument that revenue has not able to lead evidence regarding procurement of other raw materials is week argument because the appellants have no records for such goods even in the case of needles physically seized. So it is very obvious that they have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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