TMI Blog2019 (6) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... arned 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 removal and whether the penalty imposed against a person who is no more abates? - HELD THAT:- As we find that none of the above evidences have been put up in the show-cause notice and discussed in the OIO, we hold that demand as per as Annexure -D1 should go away. Therefore, we set aside the duty demand as per Annexure D1 to the show-cause notice. Demand as per Annexures-D2 and D3 of the show cause notice - HELD THAT:- The appellants have accepted the liability only with a request for extending cum-duty benefit. We find that the request can be accepted. For computation of duty, the matter needs to go back to the original authority. Duty demand as per Annexure-D4 - HELD THAT:- 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 liability for the entire period should be on him. Ld. Commissioner, after conducting cross-examination and following principles of natural justice, passed Order-in-Original No.16/2007 dated 26.09.2007 / 23.10.2007 confirming the duty, after allowing cum duty benefit, imposing penalty on the Appellant as well as on late Sri. K.G. Ravindran and dropping penalty on Sri A.K. Suraj 3. Learned Counsel for the appellants submits that confirmation of demand in respect of Annexure- D1 (pocket note book seized from the residences of Basheer Ahmed and Shivaraj) is beyond the scope of the remand order passed by the Tribunal in the first round of litigation; no investigation was carried out in so far as Annexure- D1 is concerned and hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 to the demand raised in respect of annexure D2 and D3 and not with reference to D; the buyer A. Mani has admitted having made an annual transaction of ₹ 10 lakhs only and the transporter, Shiva Transport company has also stated that only 3-4 consignments were being transported per week. Apart from this oral statement there are no other documents / evidences except notings made in the private dairy; the statements of Shiva Transport Company and A Mani accompanied with documentary details as brought out under annexures D2 and D3 has not been countered by the appellant except for the benefit of SSI exemption; the appellants accept the duty liability of ₹ 23,751, after extending the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Shri K. G. Ravindran, had fully accepted the the statement given by Shri Basheer Ahmed; in the statement dated 17.11.2000, Shri. Suraj, proprietor and son of Shri K. G. Ravindran had clearly confirmed the statement of Shri K. G. Ravindran confirmed the details given by Shri. Basheer Ahmed; various Job Workers had confirmed that they had done job work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are 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. Commissioner of Central Excise, Indore 2007 (7) STR 502 (Tri. LB). (viii) Commissioner of Central Excise, Mumbai v. Kalvert Foods India Pvt Ltd. 2011 (270) ELT 64 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vo 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 consumption etc. to prove the clearances, were not discussed. Therefore, even accepting the contention of the learned AR that all iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, we find that the appellants have accepted the liability only with a request for extending cum-duty benefit. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
