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TMI Blog2019 (3) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... er than declared for corresponding CS; that while appellants had been preparing cost statements for various latex foam products, including CS, such costing had not been done for the so called US. Department therefore took the view that appellant had not manufactured US; that whatever CS manufactured by them had been partly accounted as CS and the rest as US; that they had not distinguished the CS and the so called US in their private records like production statements, stock cards in stores / branch offices; that on many occasions they had cleared cavity sheets billed as upholstery sheets ; that the marketing companies created and controlled by appellants had invariably sold the so called US only at higher prices applicable to CS; that appellants had been sending price circular indicating the rate at which the selling companies had to sell them to the dealers ; that selling companies were required to make several payments on behalf of appellants; that appellants had taken into account the excess amount that had been realized by way of selling the so called US to review their actual performance; that with intent to evade payment of duty, they had fully misdeclared part of the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proceedings initiated for confiscation of plant and machinery and imposition of redemption fine. Aggrieved, the appellants are before this forum. 2. When the matter came up for hearing, on behalf of the appellants, Shri Mani Shankar, Ld. Senior Advocate made oral and written submissions which can be broadly summarized as under: (i) A perusal of the impugned order would show that the authority had admitted that the records are not available to ascertain and establish non-production of upholstery sheets and clearance of the same during the non-production period to substantiate the allegation that in the absence of production of upholstery sheets, cavity sheets were cleared as upholstery sheets. (ii) The Ld. Authority has also not complied with the direction of the CESTAT to give a detailed finding with regard to the dates and months when there was no production of the upholstery sheets when the clearance in respect of the same had been shown. (iii) The Ld. Authority has also not given a finding on the non-production of the varieties of upholstery sheets from the private and statutory records as directed by the majority order of the CESTAT. The Ld. Authority has merely given a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority also analyzed the various pleas and arguments of the assessee. 4. Heard both sides and have gone through the facts of the case. 5.1 In the first round of litigation before this forum the matter had been remanded with specific directions vide the Final Order No.302/2008 dt. 31.3.2008. The limited purpose of remand was to reconsider the demand of duty on CS found to have been removed as US by taking into account the observation of the Vice President and Third Member. In this regard, it would be relevant to reproduce some of the observations of the Vice President in paras 111 to 114 of the earlier final order as under: The relevant observations of Third Member in para-9 of his order portion were as under: "Ld. Collector found that the assessee manufactured cavity sheets of superior quality and higher value and cleared the same as upholstery sheets of lower quality and value and that the goods were sold as cavity sheets by the marketing companies and that the profit so earned was routed to M/s. MMRCL. M/s. MMRCL have contended that upholstery sheets are different from cavity sheets, but both could be produced by using the same mould. Out of thousands of internal daily p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the private records established that there was no production of US and out of that production the clearance of US has been made, to that extent the duty will be demandable. (ii) Duty will be demandable also in respect of figures which are taken out from the stock cards showing that they were CS in the place of US. iii) There is nothing to show that any of the extra realization made by marketing companies flowed back to the appellants and no investigation has been done to ascertain whether there was such flow back. iv) As far as appellants are concerned, what has to be seen is whether they were in any way responsible for clearance of CS as US and to that extent differential duty demand has to be made from the appellants. (iii) Out of thousands of internal daily production cards, the Collector found one card which appeared to have a mix up of US and CS. The reason for the mix up in one card for a particular month was given in writing, but the same was not properly considered by the Collector. (iv) The value has been taken on few stock cards on which there was some discrepancy which was admitted by the Production Manager but this admission has been taken to demand duty on e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with and set aside by the Tribunal in the earlier round of litigation, has the de novo adjudicating authority proceeded to confirm demand made in the order and conclude that systematic method had been adopted by appellants to "falsify the production and clearance of CS, artificially manipulate the records and to suppress the final value and the actual commodity manufactured and allowed the benefit of such increase in price to be enjoyed and accumulated by the selling companies which were under the management and control of the appellants M/s. MMR", which is no doubt, a strong condemnation but sadly not supported by sufficient evidence or investigation. The impugned order is a rehash of the findings and conclusions of the earlier adjudication which was set aside by the Tribunal in the earlier round of litigation. The adjudicating authority, in para 14.0 of the order has even arrived at a conclusion that "suppression of production and clandestine removal" are sustainable on yardstick of "preponderance of probability". 6. In the result, we have no hesitation in holding that the conclusions arrived at in the impugned order not only suffer from lack of evidence and investigation and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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