TMI Blog2000 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... om the petitioners on 12-7-1995 were directed to be confiscated, demand of duty of Rs. 53,55,862.00 was confirmed penalty of Rs. 55,00,000/- was imposed on the petitioners and further penalty of Rs. 10 lacs each were imposed on Shri Mukul Gupta partner of M/s. QEC. and on Smt. Bandana Gupta and Smt. Veena Gupta partners of M/s. Quality Chemicals and M/s. Flavour and their units under section 209A of the Act and a penalty of Rs. 10 lacs was imposed on one Alok Kumar Tewari proprietor of M/s. West Roadways under section 209A. Against the orders passed by the Adjudicating authority the appeals were filed which were dismissed by respondent No. 1, Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide order dated 14-5-1999 [1999 (112) E.L.T. 84 (Tribunal)] as contained in Annexure 4 to the writ petition. Thereafter the petitioners moved various applications under Section 35C(2) of the Central Excise Act for rectification of the mistake in the order passed under sub-section (1). These applications were originally heard by a Bench comprising of two members. There was difference of opinion between the members who passed the orders dated 27-9-1999. Thereafter the matter was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n wrongly rejected. 3.The respondents have contested the petition and in their counter affidavit they have stated that the Tribunal while dismissing the appeals have considered various circumstances holding that the three units i.e. unit of the petitioners and two alleged Trading units are being operated by the petitioners and as a matter of fact the two Trading units were non-entity; that the team visiting the premises of the petitioners on 12-7-1995 conducted physical verification of the finished goods and raw materials and the presumptions drawn on the material found during the inspection were justified. The petitioners did not submit satisfactory reply to the show cause notice and no evidence was adduced to indicate that the goods found in the premises of the petitioners belonged to some other persons. The goods found in the premises have rightly been scribed to the petitioners. The Tribunal after examining the arguments raised by the parties rightly rejected the rectification of mistake applications as being not maintainable. 4.The petitioners have filed rejoinder affidavit reiterating almost the same facts and grounds as stated in the petition. 5.Shri A.P. Mathur, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also raised at the time of hearing of the rectification of the mistake application which have been enumerated in the order dated 27-9-1999. It is submitted that the Tribunal did not give any finding on the plea that the entire demand was barred by limitation; that the Tribunal's order has not taken into account the fact that out of 28,562 Kgs. of DMO and its derivatives, 42,843 Kgs. of Menthol could not have been obtained and therefore, the department's allegation of suppression of production and clandestine removal was baseless; that the Tribunal has failed to consider the appellant's contention about the manner of verification of stock by departmental officers inasmuch as the verification was done on the basis of assumptions instead of actual weighment; that the stocks recovered from the premises also included stocks belonging to trading units and if these had been segregated, there would have been no excess as alleged; that the principles of natural justice has been violated by the authorities inasmuch as the copies of all the statements of witnesses were not supplied to the petitioners; that as long as the goods were lying manufactured in the factory premises, no duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish this claim by proper documents. The other defiance of the QEC that their distillation plant had been sent for repairs outside and, therefore production had been stopped prior to the visit of the officers also does not sustain in view of their not being able to give fuller details about the repairs and their failure to inform the authorities about the transfer of the machinery, as has been observed by the Commissioner. The claim of the appellants that it was for the department to show that the appellants had manufactured and cleared goods in clandestine manner does not deserve merit since it is an admitted fact that the goods were not accounted for and no evidence of duty paying character of the goods have been brought from the manufacturer at Rampur. We find that the allegation of clandestine production against QEC is clearly established in the facts and circumstances of the case. In view of this the penalty on M/s. QEC also appears to be fully justified. Having regard to the failure of the appellants to produce any duty paying documents and their failure to account the excisable goods for the period 1993-94 and 1994-95, the duty demand of Rs. 53,55,862/- does not suffer from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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