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2016 (4) TMI 1070 - BOMBAY HIGH COURT

2016 (4) TMI 1070 - BOMBAY HIGH COURT - 2016 (334) E.L.T. 10 (Bom.) - Job Work - Removal of drums without payment of duty - Held that:- the Company was undertaking a job work. M/s. HPCL and will not allow its raw material to be utilized for the manufacture of drums for others or to allow to dispose of the production of drums in any manner other than to supply them. That is how the allegations in the show-cause notice regarding deliveries of drums to undisclosed parties was denied and termed as i .....

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t in accordance with law and that there is a perversity in the order-in-original.

If as an Appellate Authority, the Tribunal does not wish to examine this, then, its refusal raises a substantial question of law. The last fact finding authority, viz., the Tribunal should have gone by the record. By not considering the record in its entirety and referring to some isolated event that too in an incomplete manner leads us to the only conclusion that the Tribunal has failed to perform its .....

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se & Service Tax Appellate Tribunal ("Tribunal"). 2. We only take the facts in Central Excise Appeal No. 299 of 2014 and as Central Excise Appeal No. 286 of 2014 raise a question which is common and treated to be a substantial question of law. That questions read as under: "(a) Whether in the facts and circumstances of the case, the impugned Order passed by the Appellate Tribunal is correct in upholding the demand of duty of ₹ 48,46,583/- along with interest and penalty .....

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facts are few and simple. The Appellant is a Company and it is stated to be manufacturing MS drums (Mild Steel Drums) on job work basis falling under Tariff sub-heading 731000 of the First Schedule to the Central Excise Tariff Act, 1985. The job work activity undertaken for Hindustan Petroleum Corporation Limited ("HPCL") and in the period 1st March 1992 to 31st March 1993 has been dragged on and on till this date. 4. A copy of the purchase order was scrutinized and the Revenue discov .....

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acts of omission and commission. 6. The Appellant claimed that it filed a Reply dated 11th August 1997 to the show-cause notice and in which inter alia it was urged that the statement of Mr. Ashok Manibhai Patel dated 30th December 1996 was given under duress as he was under constant threat of arrest and in fact was arrested on 11th March 1997. 7. The argument before us and as earlier reiterated before the Tribunal and the Commissioner was that this retracted statement has been heavily relied u .....

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ptic order passed thereon and material for our purpose reads as under: "6. It is the case, when the Revenue was able to prove that the appellants have cleared 10,37,048 drums to M/s. HPCL and the appellants have paid duty only on 9,02,836 drums as per GP I Gate pass. The said fact has been admitted by the appellants during the course of investigation and the same has not been retracted. In these circumstances, I do not find any reason to interfere with the impugned order and the same is uph .....

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to all the materials placed before the Commissioner when he passed the order-in-original as also before the Tribunal in the form of letter dated 11th August 1997. 11. On the other hand Mr. Sethna appearing on behalf of the Revenue would submit that this is nothing but re-appreciation and reappraisal of factual findings and the impugned order does not raise any substantial question of law and the Appeals deserve to be dismissed. This is not a case, according to him, when any statement or admissi .....

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on and that had not been retracted. 14. However, what we find is that the show-cause notice is dated 31st March 1997. In reply to that show-cause notice, a letter dated 11th August 1997 specifically states at page 91 and after denying the allegations in the show-cause notice that the statement of Mr. Ashok Manibhai Patel, Deputy Managing Director of the Appellant dated 30th December 1996 was given under duress because he was under constant threat that he would be arrested if he did not give conf .....

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se of the production of drums in any manner other than to supply them. That is how the allegations in paragraph 22 of the show-cause notice regarding deliveries of drums to undisclosed parties was denied and termed as imaginary. Once the job work was the activity undertaken and there was a denial of the liability to pay duty, so also on the above material that the least that is expected of a last fact finding authority, viz., the Customs, Excise & Service Tax Appellate Tribunal is to conside .....

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