TMI Blog2017 (6) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... med important basis for allegation of clandestine manufacture. It is clear that the author of entries made in the note book was not identified - such basis cannot be relied upon to upheld demand. Quantification of demand - Held that: - it is not clear that what type of co-relation between accounted clearance and the proper records and also how the overall duty liability has been arrived at. No chart or calculation is given in the notice. We also perused photocopies of entries in the note books which were relied upon by the Revenue. It is not clear as to how the entries are co-related to arrive at tangible evidence regarding clandestine manufacture and clearance. On careful consideration of the impugned order and the various submissions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty of ₹ 37,13,374/- and also to impose penalties under various Rules. The case was adjudicated vide order dated 25.09.1998 by the Commissioner of Central Excise, New Delhi. He confirmed the Central Excise duty demand and imposed penalties. On appeal, the Tribunal vide Final order No. 42 of 2001 dated January 2001 set aside the impugned order and remanded the matter to the Commissioner for denovo adjudication. The observation of the Tribunal in the remand order is as below: From the record of personal hearing held on 9.9.98, we find that the appellants raised specific issue in respect of their capacity of production and produced evidence of consumption of power during the relevant period. They also raised the plea that they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s grounds. The main points are a) the appellants do not possess capacity to manufacture such huge quantity of final products in a matter of 51days - from 13.04.1997 to 02.06.1997. b) The authenticity of the two note books which were never recovered from the premises of the appellant and the author of the entries is never established. The witnesses who signed the punchnama have categorically stated that they did not witness any search operation in the appellant s premises and they have signed these punchnama at Arjun Gali which is the location of M/s Sherul Insulations. c) The statement dated 11.07.1007 of the proprietor was under coercion and the same was retracted on 12.07.1997 before the Additional Chief Metropolitan Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e details of suppliers invoices with reference to machinery produced by the appellant. It was observed by lower authority that the delivery challans did not mention type and make etc and no co-relation are possible with the statements made by the appellant. When the appellants made categorical assertion regarding their production capacity, and submitted whatever records in their possession, it is for the Revenue to support the case of possible production in excess of accounted quantity by the appellant. The appellant will not be able to prove non-production, apart from stating that they have no capacity to produce such huge quantity. 5. Even on the power consumption, no specific finding was recorded. It was observed by the original autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that they have manufactured wire with branded name of others. Except the submission of proprietor and certain invoices, no other verification was made to establish as to whether these are recognized brand names belonging to identified persons or companies. In this connection, we refer to the decision of Hon ble Delhi High Court in the case of Minimax Industries - 2011 (269) ELT 169 Del . It was observed by the High Court in case of non-existence of exclusive right over the logo or branded name and non-existence of reputation linked to the brand name, the bar for denial of SSI exemption will not operate. 7. Regarding quantification of demand, it is not clear that what type of co-relation between accounted clearance and the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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