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2015 (9) TMI 773 - BOMBAY HIGH COURT

2015 (9) TMI 773 - BOMBAY HIGH COURT - 2015 (323) E.L.T. 35 (Bom.) - Quantification of demand of duty - Evasion of duty - Clandestine removal of goods - Held that:- Commissioner whilst making the demand of duty for both Polyester Yarn and Viscose Yarn had not indicated the duty separately on each of these products and, as such, as no duty was payable with regard to the Polyester Yarn, the demand with regard to the Viscose Yarn had to be re-visited on the basis of goods manufactured by the Respon .....

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e Adjudicating Authority whilst holding that there was clandestine removal of 14.54 MTs, we find that the conclusion arrived at by the Tribunal cannot be faulted. The fact that the figures on the balance sheet have to be accepted has not been disputed by the Appellant. In fact the Tribunal has noted that there is no material on record produced by the Appellant to dispute the correctness of the figures shown on the balance sheet. These findings of fact by the authorities below cannot be reappreci .....

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Susan Linhares, learned Central Government Standing Counsel appearing for the Petitioner and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondent. 2. The above Appeal came to be admitted by an Order dated 27.01.2009 on the following substantial question of law : (1) Whether it is permissible in law to consider the issue afresh in a proceeding which has already been settled by the same authority by its earlier order and had attained finality for want of any appeal against the origin .....

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on Viscose Yarn and other amount in terms of the said Order ? (3) Whether the CESTAT was justified in setting aside the Order dated 24.3.2006 passed by the Commissioner in view of the facts and circumstances as set out in this appeal ? 3. Briefly, the facts of the case as stated by the Petitioner are that the Factory premises of the Respondent Company M/s. Seagull Threads (I) Ltd. was visited by the Central Excise (Preventive and Intelligence) Unit of the Appellants Office. Records and material .....

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ich was allowed on 24.07.2007 thereby the Order demanding duty, penalty and interest was set aside. Being aggrieved by the said Order, the Appellant has preferred the present Appeal. 4. The learned Central Government Standing Counsel appearing for the Appellant, in support of the aforesaid substantial questions of law, has pointed out that the team of the Central Excise Officers visited the premises of the Respondent and prepared a panchanama dated 13.08.1996 and 16.08.1996 whereby, the excisabl .....

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rder dated 31.10.1997 held that the Respondents had indulged in clandestine manufacture and clearance of excisable goods by suppressing figures of production and sale and, consequently, confirmed the demand of ₹ 40,18,686/- as basic excise duty and ₹ 6,02,803/- as additional duty of Excise and also imposed penalty of equivalent amount under Section 11AC of the Central Excise Act, 1944, whereby, the Polyester sewing thread totally valued at ₹ 19,690.29 was ordered to be confisca .....

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ide; the penalty imposed under Rules 173Q was reduced to ₹ 2 lakhs; the Respondents were called upon to pay the duty on Viscose Yarn as and when it was worked out. The learned Counsel further pointed out that the Order dated 19.07.2004 passed by the CESTAT was duly accepted by the Commissioner and accordingly a demand of ₹ 7,12,765/- was communicated to the Respondents by letter dated 13.05.2005. It is further the contention of the learned Counsel for the Appellant that the Responden .....

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or abundant caution, a speaking Order was passed by the Commissioner after giving a personal hearing to the Respondent. But, however, by letter dated 13.05.2005, the said sum of ₹ 7,12,765/- was re-confirmed by the Appellant. The learned Counsel further submits that aggrieved by the Order, the Respondent preferred an Appeal before the CESTAT which was opposed by the Appellants and ultimately by impugned Order dated 24.07.2007, the Appeal was allowed and the Order dated 24.03.2006 passed by .....

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the Commissioner is totally erroneous. Learned Counsel has also taken us through the Order passed by the CESTAT and pointed out that the evidence has been misconstrued and, as such, the Appeal deserves to be allowed and the substantial questions of law be allowed and answered in favour of the Appellant. 5. On the other hand, Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents, has disputed the said contentions. Learned Counsel as pointed out that on the basis of the material on r .....

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submits that the substantial question of laws be answered against the Appellant. Learned Counsel has taken us through the balance sheet to point out that the adjudicating authority has considered only the production portion and has not considered the fact that there was a closing balance of the very same product indicated in the balance sheet. The learned Counsel has further pointed out that the adjudicating authority has failed to note that there is a closing balance on 31.03.1996 which clearl .....

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whether the claim of duty penalty and interest is justified. The Tribunal has rightly noted that on perusal of the Order of the remand, it clearly says that the demand thereof is to be re-visited on the basis of total Viscose Yarn manufactured by the Respondent during the year in question. The Tribunal, as such, found that the show cause notice issued to the Respondent was pertaining to the duty payable on Polyester Sewing thread and Art Silk Embroidery thread cleared during 1995-96 and, as suc .....

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icating authority whilst making a demand. The Tribunal as such found that the revenue has not produced any evidence as to indicate that the said closing balance of 24.16 MTs as shown in the balance sheet did not include 14.54 MTs for which demand of duty has been confirmed. The learned Tribunal as such set aside the demand of revenue filed by the Respondents. 7. The dispute in the present case is with regard to the claim of duty in respect of two types of goods, one is the claim in respect of po .....

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