9911796707
TMI Blog2018 (9) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... sputes, they are taken up for common disposal. For the sake of convenience, the parties involved hereinafter are referred to as assessee, co-noticees and the department. 2.1 The assessees in these batch of appeals are M/s.Sri Sathuragiri Match Co. (E/266/2012), The President Match Co. (E/269/2012), Raja Match Works (E/42416/2014) and Kanthakumar Match Works (E/42421/2014). 2.2 The appeals E/267, 270/2012, E/42418, 42423/2014 have been filed by Shri G. Nagarajan (Partner of President Match Co. and Partner in Shanmugam Match Company). 2.3 Appeals E/268, 271/2012, E/42419/2014, E/42424/2014 have been filed by K. Shenbagakumar (Partner in President Trading Co. and office-in-charge of the group companies concerned) 2.4 Appeals E/42417/2014 and E/42422/2014 have been filed by J. Srithar (Partner of Raja Match Works and Kanthakumar Match Works). 2.5 Above named persons have filed appeals against the duty liabilities and penalties confirmed by lower appellate authorities in each case. 2.6 Revenue is aggrieved by the setting aside / reduction of differential duty in respect of President Match Co. & Sri Sathuragiri Match Co. and setting aside / reduction of penalties in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/12 dt.17/1/12 - 2,00,000 - 25,73,046 - 2,00,000 4 E/283/12 CCE Madurai [against dropping of demand] 10/2010 CE dt.31.8.10 07-12/12 dt.17/1/12 6,11,669 - - - - - 5 E/284/12 CCE Madurai 10/2010 CE dt.31.8.10 07-12/12 dt.17/1/12 - For Enhancement of Penalty - - - - 6 E/286/12 CCE Madurai 10/2010 CE dt.31.8.10 07-12/12 dt.17/1/12 - For Enhancement of Penalty - - - - 7 E/287/12 CCE Madurai 10/2010 CE dt.31.8.10 07-12/12 dt.17/1/12 - For Enhancement of Penalty - 5,00,000 - Nil 8 E/288/12 CCE Madurai 10/2010 CE dt.31.8.10 07-12/12 dt.17/1/12 - For Enhancement of Penalty - 50,000 - Nil 9 E/285/12 CCE Madurai 10/2010 CE dt.31.8.10 07-12/12 dt.17/1/12 - For Enhancement of Penalty - 10,00,000 - 25,000 10 E/266/12 Sri Sathuragiri Match Company 09/2010 CE dt.30.8.10 03-06/12 dt..17/1/12 4,27,061 4,27,061 11,30,337 11,30,337 4,27,061 4,27,061 11 E/267/12 G.Nagarajan 09/2010 CE dt.30.8.10 03-06/12 dt..17/1/12 - 50,000 - 11,30,337 - 50,000 12 E/268/12 V.Shenbagakumar 09/2010 CE dt.30.8.10 03-06/12 dt..17/1/12 - 50,000 - 11,30,337 - 50,000 13 E/290/12 CCE Madurai [against dropping of demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and documents submitted by these noticees were considered by the lower authorities. In the result, the orders of both adjudicating authority and the Commissioner (Appeals) are prejudiced orders which have been passed without taking into consideration the various submissions, contentions and arguments put forth in the documents / worksheets submitted by the noticees. iv) In proceedings related to President Match Co. and others, the assessee vide communication dt. 09.07.2009, had requested for cross examination of 7 witnesses and examination of 6 witnesses. However, cross examination of only one two witnesses was allowed. In proceedings related to Sri Sathuragiri Match Co. and others, the assessee vide communication dt. 09.07.2009 they had requested for cross examination of 6 witnesses and examination of 6 witnesses. However, the adjudicating authority has allowed cross examination of only two witnesses for the reason that others are co-noticees. In proceedings related to Raja Match works & others, the assessee vide communication dt. 08.07.2009 they had requested for cross examination of 5 witnesses and examination of 6 witnesses. However, no cross examination was allowed. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tri.-Chan.) which has inter alia held that identically worded statements cannot be relied upon. (vii) Units like Appu Match Works, Raja Match Works, Balaguru Match Works, Kandakumar Match Works etc. do packing on duty paid match splints which does not amount to manufacture. In fact, some the units like Appu Colour Match works, Eshwari Match Works, Jai Hind Matches and Shanmuga Match Works were manufacturing handmade matches. The President Trading Co. is the trading unit of the group who procure machine made matches and handmade matches from these concerns and sell it in the market. The presumption that matches were removed under the invoices of President Trading Co. is not based on evidence. None of the documents of President Trading Co. are relied upon in the SCN. viii) The basic question whether assessees purchased enough raw materials particularly Pottasium Chlorate and Sulphur has not been gone into. These two chemicals are controlled items which cannot be purchased in excess of the quota allotted by the Police Department, hence there should be corroborative evidence to establish that the assessees concerned had obtained or otherwise laid their hands upon the quantities of Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) Coming to the department Appeal E/283/2012 filed against M/s.President Match Co., Ld. counsel submits that duty amount involved is only Rs. 6,11,699/- which is below the prescribed limits for filing appeals before Tribunal as per the litigation policy of the Government. In the case of Sri Sathuragiri Match Company, the department has come in Appeal E/290/2012 against dropping of duty demand of Rs. 7,03,276/- which is also below the minimum prescribed limits for filing appeals. In Galaxy Match Company similar orders were passed by the Commissioner (Appeals) in Order-in-Appeal No.94-98 & 124/2011 dt. 24.01.2012 and against which department had filed appeal, E/289/2012 which however was dismissed as withdrawn vide Final Order No.41425/2016 dt. 18.08.2016. The present appeals filed by the department also deserve to be dismissed for the same reasons. xiv) Further, the averments made in the grounds of appeal are actuallyincorrect. There are no delivery notes / chitsavailable for the entire period of demand and there is no such allegation in the SCN. So also, the averment in grounds of appeal that assessee had obtained permission from department to send dipped flints to Shanmuga Match ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce also established the control of the respondent M/s.President Match Company over the suppression of production and ultimate clearances from the other five companies. ix) The dipped splints were cleared with permission / on payment of duty to the other units only to facilitate the clearance of unaccounted raw material and subsequent clandestine removal of match bundles. x) M/s.President Match Company has controlled the entire operation from supply of raw material, conversion and transportation of the finished products and cannot be absolved of duty liability by treating them as mere suppliers of raw material. xi) Case law relied on by the Commissioner (Appeals) to hold that the respondent is a mere supplier of raw material and not a manufacturer is on entirely different facts and hence cannot be applied as precedents. Reliance is placed on the Hon'ble Supreme Court judgment in the case of Sri Kumar Agencies reported in 2009 (13) STR 13 wherein the Hon'ble Apex Court has held that precedents are to be applied only after discussion of similarity of facts. 6. Heard both sides and have gone through the facts of the case. 6.1 We find merit in the contentions of the Ld. Advocate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
