TMI Blog2001 (11) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ousand five hundred and fifty only) from M/s. Electro Copier, 198, Arcot Road, Madras under Rule 9(2) read with proviso to Section 11A(1). 44. I impose a penalty of Rs. 12,71,000 (Rupees twelve lakhs and seventy-one thousand only) on M/s. Nu-trend Business Machines (P) Ltd., Madras under Rule 173Q. 45. I impose a penalty of Rs. 8,00,700 (Rupees eight lakhs and seven hundred only) on M/s. Xerograff, 811, Mount Road, Vummidiyar Shopping Centre, Madras under Rule 173Q. 46. I impose a penalty of Rs. 4,67,460 (Rupees four lakhs sixty-seven thousand four hundred and sixty only) on M/s. Sectel India, 811, Mount Road, Vummidiyar Shopping Centre, Madras under Rule 173Q. 47. I impose a penalty of Rs. 28,550 (Rupees twenty-eight thousand five hundred and fifty only) on M/s. Electro Copier, 198, Arcot Road, Madras under Rule 173Q. 48. I impose a penalty of Rs. 5,00,000 (Rupees five lakhs only) on Shri K.A. Shabu under Rule 209A. 2. The short facts of the case as narrated in the Order-in-Original are that appellants M/s. Nu-trend Business Machines (P) Ltd. (for short, NBMPL) are manufacturers of photocopier machines with the brand name of "CANON" classifiable under Heading 90.09 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (d) that the department had not come across any evidence of these; (e) that it was on record that they had been purchasing the second hand machines importing and purchasing components and selling reconditioned second hand machines and components; (f) that the notice is based on evidence of 17 persons — out of these, five did not turn up for cross-examination and out of these five, four did not state that they purchased any machines from them; (g) Viswanathan Nair who had allegedly purchased of 35 machines had not turned for cross-examination and not produced any documentary evidence in support of his allegation; (h) that his assistant Eldo Joseph stated that the firm had been closed. 5. All the persons cross-examined had stated that the machines purchased from the noticees were second hand; that the goods purchased were components or no evidence had been submitted of goods being purchased by the noticees; that their statements had been extorted by the officers or they had made the false statements to protect their own interest; that the bills/invoices under which the noticees had sold the goods were for components of photocopiers. It is to be noted that they themselves were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as manufacturer. 9. M/s. Sectel were importing component parts of photocopier and sold them to owners of photocopiers of component parts and not as assembled unit. On few occasions, Sectel did sell copiers but as retailers and not as manufacturers and fully assembled photocopiers had been purchased for the purpose, and not assembled out of imported components as alleged in the notice. 10. They contended finally that, even if it was possible to assemble the photocopiers using screw driver technology, it was a matter of law whether such activity would amount to manufacture and hence the proceedings deserved to be dropped. 11. Ld. Commissioner in the impugned order has not agreed with their contention and has held that they did not produce any evidence on record to show that these components were sold in retail. He has noted that there are invoices showing sale of photocopiers, spare parts, but these did not have names of specific parts and quantities which is contrary to the practice followed by the traders of spare parts and components. He has noted that none of the components sold are in small quantities and the total value of the spares shown is approximately in the range ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2176 dt. 25-11-93, reference has been made to GP Nos. 4 dt. 24-3-93, 5 dt. 2-8-93 and 7 dt. 25-11-93. A check of these GPs in the Range records shows that none of them were issued to the notices. Further, these GPs refer to invoice Nos. 1342 dt. 1-6-93, 1343 dt. 1-6-93 and 1345 dt. 2-6-93 respectively. Also, the quantities covered by these GPs are different from the quantities indicated in the invoices produced by the defence. Finally, these three GPs indicate that the clearance were made under exemption Notfn. No. 175/86 whereas the corresponding invoices show payment of duty by Raj Graphic. All this puts a serious question mark on the authenticity of the copies of three invoices produced by the defence. This evidence also makes it difficult to accept the contention of the defence in respect of the remaining invoices. I, therefore, reject the entire claim in respect of 27 photocopiers. 39. It is thus clear that they purchased disassembled components of photocopiers and assembled them as fully functional machines. Parts and components of photocopiers are classifiable under heading 90.33 and the photocopiers under 90.09. Assembly of the parts brings into existence a new product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w driver technology assembly. He submitted that even for assembling the items and making it to be marketable, appellants did not have the facilities. He pointed out that the Commissioner was not justified in rejecting the invoices produced, in respect of procurement of 27 photocopiers from M/s. Raj Graphics Business Machines, which clearly bore the G.P.I numbers. It was pointed out that Commissioner has got these invoices verified behind their back from the range Superintendent as noted in the above extracted paragraphs but without putting the evidence to them. Appellants, were, therefore denied for a reasonable opportunity to counter the evidence of the department and hence the order is not a correct order. 15. It is contended that had the invoice details been furnished to them, they would have explained and shown and could have corroborated through proper verification of the documents of M/s. Raj Graphics Business Machines with their invoice which bore the G.P.I numbers and it was clearly correlatable . The fact that the Commissioner has rejected and given a finding on the evidence produced behind their back in Para 38 vitiates the order and the order is required to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence collected at the back of appellants as noted in Para 38 of the order. 17. On careful consideration of the submissions, we find lot of force in the appellants' plea. The entire case is based on statements recorded from various persons. Out of 17 persons from whom the statements were recorded, the OIO in Para 26 clearly records that 5 did not turn up for cross-examination and out of these five, four persons did not state that they purchased any machinery from the appellants. This itself negates the department's case. When a person does not turn up for cross-examination, his statement cannot be accepted and on the basis of that statement demands cannot be confirmed. Likewise, when the Revenue have not corroborated their statement or have explained or given a different version, then the statement looses its evidentiary value. Likewise, Mr. Viswanathan Nair who allegedly purchased 35 machines did not turn up for cross-examination nor has produced evidence in respect of this allegation. If this be the position, then the demands for 35 machines cannot be confirmed. Likewise, we notice that there are several lacunae in the order. Appellants had produced copies of invoices of diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
