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2019 (6) TMI 363

..... has given a categorical finding, not once but twice, in the above cited order that the entries at the pocket dairies are not corroborated by any evidences. Therefore, we find that there is substance in the submissions of the appellants, as far as the impugned order travelling beyond the remand order is concerned. The Learned AR for the department has reiterated the findings of the OIO and submitted that learned Commissioner has dealt with the evidences in detail in para 13 of OIO dated 26.9.2007. We find that learned Commissioner has given similar findings as in the earlier order based on the statements recorded only. The key issues, raised by the Tribunal, like corroborative evidences in the form of transport documents, purchase of raw materials, invoices, raw material consumption etc. to prove the clearances, were not discussed - Even accepting the contention of the learned AR that all issues were kept open, we find that as observed by the Tribunal in the above cited order, no corroborative evidences to prove the clandestine removal alleged in Annexure-D1 to the show cause notice are coming forth. Whether the appellants are liable to pay the duty on the alleged clandestine remova .....

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..... transporter. On completion of Investigation, a SCN dated 29.10.2001, proposing to demand Central Excise duty of ₹ 77,30,293/- along with interest, on the alleged manufacture and clandestine clearances of borewell button bits and parts of Hammers, during the period from 1996-97 to 2000-2001 while proposing penalty on Sri K.G. Ravindran, and Sri A.G. Surendra, S. Satish and Basheer Ahmed. Ld. Commissioner of Central Excise, Mangalore vide Order-in-Original No.18/2006 dated 22.12.2006 confirmed the demands and imposed personal penalties. 2. On appeals filed by the concerned, Tribunal, vide Final Order Nos.1213 - 1216/2006 dated 20.07.2006, allowed the appeal by way of remand, keeping all issues open while observing that even though the pocket dairy contained details of alleged supplies made to dealers investigating officers have not contacted the dealers and recorded their statements; there is also no proof of purchase of raw material required for the alleged clandestine manufacture and clearance; we do not find any justification to hold that for a part of the period Surendra and Satish should be held as manufacturers; legally the proprietor is Sri K.R. Suraj and the duty liabi .....

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..... e clearances and hence, it is only during the year 1999-00 and 2000-01, the value of clearances were exceeded the SSI exemption limit and thereby, duty liability can be sustained only on the value of ₹ 7,91,700/- which should be considered as cum-duty price; demand of the period prior to October 1996 is beyond the period of five years and hence, barred by law. 3.2 Learned Counsel for the appellants further submits that Hon ble Tribunal had already given a finding regarding non availability of any corroborative evidence in the form of transport documents, purchase of raw materials, invoices, raw material consumption, etc., to prove the clearances as per annexure D1; the Commissioner knowing fully well that there are no documentary evidences, has chosen to once again rely on these statements, which is clearly beyond the scope of remand order without the authority of law; Ld. Commissioner has totally erred and has over stepped while adjudicating the case in the de novo proceedings; in para 13 of the impugned order wherein the Ld. Commissioner has held that the statement of the proprietor of Shiva Transport Company prove regarding transport of goods etc., are all with reference t .....

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..... started only from 06.11.1996, as evident from the lease agreement dated 06.11.1997, demand for the period starting from 25.05.1996 to 06.11.1996 cannot be sustained at all; demand for the period prior to October 1996 is barred by law as the Department can recover duty only for the period of five years; as the appellant has not involved in any clandestine removal, demand invoking larger time limit is clearly barred by limitation; imposition of penalty is incorrect as no duty can be fastened; moreover, imposition of penalty both under Section 11AC as well as under Rule 173Q is also bad in law; Sri. K.G. Ravindran died on 07.07.2017 and therefore, penalty imposed has to abate. 3.6. Learned Authorised Representative for the department reiterated the findings of OIO and OIA and submitted that the D-1 is based on the pocket note books, maintained by Shri P.M. Basheer the then Manager of the Appellant unit and contained the details of goods manufactured, sold and mount due etc; Shri Basheer Ahmed in the statement dated 17.09.2000 had clearly stated that the pocket note books were maintained by him to tack of production, sales and assured commission; in his statement dated 17.11.2000 of Sh .....

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..... ietor and the firm are one and the same, proposal to impose penalty on Sri. K Suraj tinder Rule 209A of the erstwhile Central Excise Rules, was dropped. With reference to Sri K. G. Ravindran, he submitted that as mentioned in para 19 of the 010, Sri K. G. Ravindran was managing the day to day affairs of the units; was fully aware of the fact of excisability of drill/button bits; manufactured and cleared without records and without payment of duty and hence penalty was rightly imposed on him. 4.3. Learned AR relied upon the following cases: (i) Gulabchand Silk Mills Pvt. Ltd. v. Commissioner of C.Ex, Hyderabad-II - 2005 (184) ELT 263 (Tri. Bang.) (ii) Collector of Customs, Madras and others v. D. Bhoormull - 1983 (13) ELT 1546 (SC). (iii) Columbia Electronics Ltd. v. Commissioner of Central Excise, Indore- 2002 (143) ELT 635 (Tri. Del.). (iv) Commissioner of Central Excise, Trichy v. Anjaneya Steel Rolling Mills - 2005 (185) ELT 1589 (Tri. Chennai) (v) Motorol Technologies Ltd. v. Commissioner of Central Excise, Vadodara - 2009 (245) ELT 278 (Tri. Ahmd.) (vi) Beauty Dyers v. Commissioner of Central Excise, Chennai - 2001(136) ELT 339 (Tri. Chennai) (vii) Gopal Industries Ltd. v. Com .....

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..... es in respect of pocket dairy, we deem it proper to remand the entire case to the adjudicating authority (Commissioner) for de novo decision. The appellant shall make all their submissions before the adjudicating authority. Needless to say that while calculating duty liability, the benefit of cum-duty value has to be given. All issues are kept open.…… 5.2 From the above, we find that this Bench has given a categorical finding, not once but twice, in the above cited order that the entries at the pocket dairies are not corroborated by any evidences. Therefore, we find that there is substance in the submissions of the appellants, as far as the impugned order travelling beyond the remand order is concerned. The Learned AR for the department has reiterated the findings of the OIO and submitted that learned Commissioner has dealt with the evidences in detail in para 13 of OIO dated 26.9.2007. We find that learned Commissioner has given similar findings as in the earlier order based on the statements recorded only. The key issues, raised by the Tribunal, like corroborative evidences in the form of transport documents, purchase of raw materials, invoices, raw material consump .....

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..... it. We find that the request can be accepted. For computation of duty, the matter needs to go back to the original authority. 5.4 Coming to the duty demand as per Annexure-D4, the appellants contended that the goods were very much lying in the factory and as such, no duty can be demanded as it is not the case of the department that the goods have been removed without payment of duty. 5.5 Coming to the penalty imposed on the main appellant i.e., M/s. Suraj Machine Tools, we find that since the duty is confined only to Annexures-D2 and D3, we hold that penalty will be equivalent to the duty payable by the appellants in terms of the annexures after extending cum-duty benefit. 6. In view of the above, the impugned order is set aside and the appeal is allowed by way of remand in the following terms: (i). Demand related to Annexure-D1 of the show cause notice is set aside. (ii). The issue related to duty demand as in Annexures-D2 and D3 is remanded back to the original authority with a direction to compute the duty liability after allowing cum-duty benefit. (iii). M/s. Suraj Machine Tools shall pay penalty equivalent to the duty payable in (ii) as above. (iv). Demand as in Annexure-4 is .....

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