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2017 (2) TMI 620 - MADRAS HIGH COURT

2017 (2) TMI 620 - MADRAS HIGH COURT - TMI - Condonation of delay - Clandestine removal - production and clearance of branded Chewing Tobacco under the guise of unbranded Chewing Tobacco - Held that: - there is a non-maintenance of the accounts in respect of certain quantity of the raw materials, finished product and non-finished product for which assessments were made and also that has been recovered and private accounts is maintained instead of maintaining regular accounts. So only on technica .....

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to the Department which attracts duty under the Central Excise Rules. - There is no bona fide on the part of the assessee in seeking to condonation of delay and it is only with the defiant intention to delay the process of recovery - Review Application dismissed - decided against applicant. - Civil Miscellaneous Appeal Nos.210 and 212 of 2015, Review Application Nos.37 and 38 of 2015 - Dated:- 10-1-2017 - Huluvadi G. Ramesh And Anita Sumanth, JJ. For the Appellant/ Review Petitioner : Mr.Sh .....

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Miscellaneous Order No.42676 of 2013 dated 12.11.2013 in E/Rom/41078/2013 in Final Order No.40080 of 2013 dated 27.2.2013 in Appeal No.E/215/2011. 2. The Review Applications have been filed by the assessee viz., V.K.Palappa Nadar Firm challenging the order passed by a learned Single Judge of this court in C.M.A.SR Nos.40653 and 40653 of 2014 alongwith petitions to condone the delay in filing such civil miscellaneous appeals as against the order passed by the CESTAT in Miscellaneous Order No.643 .....

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sited the units of the assessees on 8.6.2001, and found that there were suppression of production of Chewing Tobacco falling under the overhead No.2404.41 41, illicit removal of the same under the guise of unbranded Chewing Tobacco without payment of duty. After having inspection of the stocks and accounts of the firms, it was found that they had declared to be manufacturing unbranded Chewing Tobacco. On verificatin, the stock of finished Chewing Tobacco was found to be 193 kgs. and no statutory .....

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material, tobacco and other flavoring agents used to be brought from VKP & Co., mised in the unit and packed in gunny bags, that the packets so received would be weighed and the accounts would be entered into the chits and given to Sri.Ammaiyappan, that the details of gunny bags ready for despatch used to be informed to Sri.Ammaiyappan over phone and then he used to visit the unit with bills and documents and despatch the goods, that the goods were generally used to be sent to North Arcot an .....

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ppears that when inspection was conducted with regard to VKP Firm, correspodence by M/s.TLG Radhakrishnan & Sons, Thirupathur alongwith some materials were seized. 5. Based on the incriminating materials, the assessment ordere was passed by the assessment officer viz., Additional Commissioner, calling upon assessee viz., M/s.V.K.P.K.Arivuthurai and Brothers to pay the duty to the tune of ₹ 48,74,828/- under section 11A(1) of the Central Excise Act, with penalty of ₹ 48,74,828/- u .....

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d rule 25 of Central Excise Rules. 6. It appears that while passing the order, the assessment officer took into account the escapement of excise duty by way of not maintaining the statutory accounts and only maintaining private accounts and having recovered certain incriminating materials and material objects and also private accounts that were maintained and also on the statement of one P.K.Rathinavelsamy, accountant, the Additional Commissioner assessed the duty and penalty as against the asse .....

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ued further direction to the original authority to supply all the relied upon documents to the assessees. 8. Accordingly, the de novo order in original was passed by the assessing officer on 17.2.2009. It seems that the assessees had approached the CESTAT once again chalenging the de novo order and the CESTAT, by way of Miscellaneous Order Nos.642 and 643 of 2009 dismissed the applications filed by the assessee holding that the assessees had approached the Tribunal directly without exhausing the .....

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iled by the assessees were also dismissed by the Tribunal, by its order dated 12.11.2013. Aggrieved against the same, the civil miscellaneous appeals are filed by the assessees. 9. Learned Senior Counsel appearing for the appellants/assessees vehemently argued that neither the CESTAT nor the Commissioner (Appeals) has applied the mind and also having raised a substantial question of law with regard to limitation, the provisions under section 14 of the Limitation Act have to be interpreted libera .....

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7 would attract the provisions of Section 14 of the Limitation Act inasmuch as the appellant in this case had been prosecuting with due diligence another civil proceeding before the appellate authority under the Tamil Nadu Shops and Establishments Act, which appeal was dismissed on the ground that the said Act was not applicable to the nationalised banks and that, therefore, such appeal would not be maintainable. This Court made a distinction between "civil court" and "court" .....

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in an abortive proceeding that the word "court" has been expanded to include proceedings before tribunals." 10. Therefore, the word word "court" refers only to a proceeding which proves to be abortive and as per Section 14 of the Limitation Act, it must satisfy that the primary proceeding must be a suit, appeal or application filed in a civil court and secondly, it is only when it comes to excluding time in an abortive proceeding that the word "court" has been .....

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ter and further, sught to contend that there is no such extension of time for having having not supplied the documents which were, throughout, pressed by the assessee. Accordingly, the learned counsel for the assessee sought to contend that both the CESTAT and the Commissioner (Appeals) passed the orders on the point of delay without looking into the factual position viz., non-supply of documents and accordingly sought to contend that it is a fit case for remand and re-consideration of the case .....

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e. This shows that there is no proper care or attention shown by the assessee in the conduct of the case. Apart from that it is clearly indicated that while adjudicating the matter, the documents which where not supplied to the assessee were not relied upon and the Commissioner (Appeals) as well as the CESTAT had observed about the casual approach on the part of the assessee in extending their co-operation for disposal of the matter. 12. We are of the view that the Apex Court, has of course, int .....

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80 of the typed set of papers, the acknwoeldgment made by the assessee for receipt of several documents have been shown which clearly shows that all the documents that were relied upon for adjudication were received by the assessee during February 2002 and it appears that some documents were missing, but, however, such docuemnts have not been relied upon in the adjudication adverse to the interest of the assessee. Moreover, looking into the case from its threshold it is clear that there is a non .....

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those documents were supplied and only thereafter, the order has been passed imposing penalty as indicated above. 13. Admittedly, the issue is a long drawn one. It is pending for more than 15 years. In the event of remand, it has to go once again before the assessing officer or before the Commissioner (Appeals) which would not serve any useful purpose, rather, it is seen that statement from the accountant is also said to have been recorded, and also there is a clear admission on the part of the .....

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