9911796707
TMI Blog2000 (1) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise in accordance with the Induction Furnace Annual Capacity Determination Rules, 1997. In pursuance of this power, the Commissioner of Central Excise determined the annual capacity of the production of the petitioner's factory that contains two furnaces at .metric tonnes by an order, dated 19-3-1996 which are difference from 1-9-1997. It is claimed that since the electric connection of the petitioner's unit was disconnected, the petitioner had to shut down the production in both the furnaces and information of the shut down was given to the authorities concerned by a letter, dated 27-5-1998. During the period of closure, the petitioner moved two applications, dated 29th of June, 1998 and 2nd of July, 1998 requesting them to permit the petitioner to reduce the size of both the furnaces which will result in the reduction of their capacity from 1 MTs to 3 MTs. The respondent No. 2 vide letter, dated 5-8-1998 is alleged to have granted permission to change the installed capacity. The petitioner accordingly changed one furnace and vide a letter, dated 28th of August, 1998, made a request to redetermine the annual capacity of production and to assess the duty liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods worth about Rs. 49,94,990/- vide another detention memo of the same date, a copy of which is Annexure 19B. Simultaneously on the same date, the respondents visited the residential premises of the Managing Director of the petitioner's Company and detained several household goods including jewellery, relief bonds, FDRs. and cash. The total value of those assets detained from the residence is stated to be more than Rs. 1.5 crores. It is claimed that the entire exercise is illegal. In addition, one of the employees of the petitioner was also taken into custody and was produced before the Chief Judicial Magistrate, Kanpur for remand. It is claimed that the detention of the various goods was made as a sequel to an first information report lodged by the respondents against the Managing Director of the Company on 30-12-1999 in which many baseless allegations were made against him. It is claimed that no demand what-so-ever was pending against the petitioner because the various claims, as mentioned above, were yet to be adjudicated and the duty liability cannot be determined without adjudicating the claims and refixing the capacity of the second furnace. It is claimed that no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner vide a letter, dated 7-1-2000 and the matter is posted for personal hearing on 24-1-2000. Regarding the reduction of the capacity of the second furnace, it is stated that the parameters thereof have been verified on 17-11-1999 and the matter is under process. 4.It is claimed that the respondents entertained a reasonable belief that incriminating documents relating to evasion of excise duty in respect of the petitioner and other units controlled by the petitioner indirectly, namely M/s. Orai Food Products Pvt. Ltd., M/s. Nigotia & Co., might be available at the residential premises of the Managing Director of the petitioner Sri Pradeep Kumar Nigotia, a raid was conducted at the said premises. It is claimed that during the raid on the premises of M/s. Orai Food Products Pvt. Ltd., a group of 50-60 perrsons assaulted the Excise Officers and during the search at the residential premises of Sri Pradeep Kumar Gupta (Nigotia) various other properties including unlicensed fire arms were recovered. It is claimed that the seizure of the articles found at the residential premises of Sri Pradeep Kumar Nigotia was made under the provisions of Section 12 of the Central Excise Act, 1944 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed thereafter." 7.The contention of the learned counsel for the petitioner was that the petitioner has made a claim for abatement of excise duty for the period referred to above and also for the redetermination of its actual capacity of production on the ground of the reduction of the capacity of two furnances. No amount is due from the petitioner towards the excise duty as the petitioner has been paid excise duty of about Rs. 10 lacs per month. It was not disputed before us that the excise duty payable is calculated on the basis of the Commissioner's determination dated 19-3-1998 and redetermination vide order, dated 24-3-1999, a sum of Rs. 98 lacs or thereabout remains outstanding against the petitioner. The petitioner's contention is that the claims for abatement and redetermination of the annual production capacity are pending before the Commissioner (CEGAT) etc. and, therefore, the .. the respondents in taking coercive steps towards the recovery of the disputed dues by the detention of the petitioner's properties is illegal. It is also claimed that Section 230 only authorises the detention of the goods to prevent their transfer, disposal or change and it does not permit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using the property in the normal course and yet keep the same available for a sale, in accordance with the decisions of the Act or the Rules. In the present case the manufacturing apparatus of the petitioner has been detained which consists of two furnaces which have been sealed, one diesel generating set, three overhead cranes and two electric transformers. We are of the view that in spite of their detention under Section 230, the petitioner has a right to use the same for the production of the goods and it is prohibited only from transferring or otherwise disposal of the same. Mere user does not amount to transfer or disposal otherwise. The petition, therefore, deserves to succeed only to the extent that the respondents should forthwith remove their seals, if any, from the aforesaid items of plant and machinery. 9.As regards the alleged detention of the movable goods found at the residence of the Managing Director, Sri Pradeep Kumar Gupta (Nigotia), a list of the articles seized shows prima facie that almost everything valuable has been seized including mangal sutras and small ornaments like rings and it is amazing that without any material, the respondents could believe that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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