TMI Blog2002 (9) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... hy. Both the cases relate to manufacture of 35 mm un-exposed cinematography colour polyester films being manufactured by M/s. Ravishankar Industries Pvt. Ltd. who was evading payment of Central Excise duty by not accounting part of their production for Central Excise purposes and the same were being cleared clandestinely without payment of excise duty. Since both the cases are inter-linked, they are being disposed of by this common order. 3.In both the appeals, Shri A. Jayachandaran, learned DR has appeared on behalf of the Revenue. He submitted that M/s. R.S. Industries Ltd. have reported colour positive films of 1380 jumbo rolls. Width of each chamber roll is 1.384 metres and length of 38.50 ft. (1100). Later on, it was accepted by the importer that the actual length of one jumbo roll is 4050 ft. (1234 metres). That the standard claim in the film industry is to have minimum of 2000 ft. of length of a 35 mm film roll (double) and industry cannot manufacture less than 2000 ft. length (610 metres). Therefore, out of 1380 chamber rolls of 4050 ft. length and width of 1384 metres, one can manufacture 1,04,880 rolls but the importer has stated that they manufacture only 99,659 rolls. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not correct and proper. Therefore, the appeal filed by the Revenue may be allowed and the appeal filed by M/s. Ravishankar may be dismissed. 5.Shri Ezhilmani learned Advocate has appeared on behalf of M/s. R.S. Industries Ltd in E. No. 774/2001 and Shri Doiphode, learned Advocate has appeared on behalf of the M/s. R.S. Industries in A. No. E/677/2001 Shri Ezhil , submitted that the actual length of the chamber roll was about 4,061 ft. which give yield for 4,000 ft. or about 1,220 metres finished product which was taken into account and their production recorded after rejecting the un-useful portion without samples and process rejections. The useful portion and the basis for declaration of the length in the booking list had been explained in detail by Kodak vide their letter dated 24-11-99 which is the crux of the whole matter. The waste described so generated were accounted for in RGI and declaration cleared on payment of duty. The invoice was on the basis of area and not on length and the area mentioned in the packing list match with the invoice area. Each finished roll was approximately 1,220 metres in length and this clearly shows that they had not taken into the lower length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department because no direct or concrete evidence has been brought on record to prove the clandestine removal; that the total scrap that has been cleared till 11-2-97 was 37,605 kgs; that 152 rolls admitted to have been cleared by following the procedure and payment of duty; 2,428 defective cans were kept separately and they had gone as a waste and no evidence has been brought by the Department on record for defective cans; that the Commissioner has duly considered all the relevant factors; that the case of the Revenue is based on assumption and presumptions, etc., and which were not supported by any substantive evidence; that he finally submitted that the appeal filed by the Revenue may be dismissed. 6.That M/s. R.S Industries has deposited a sum of Rs 40 lakhs in 2 instalments on 19-2-97 and 20-2-97; the learned Counsel submitted that the said amount has been deposited under threat and force; that the department issued show cause notice dated 23-4-98 to 25-4-98 demanding a sum of Rs. 21,76,531; that vide the impugned order, the Commissioner has considered all the points raised by the department and the documentary evidence on record and after careful consideration, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 — Arguing the case for the appellants, the learned Counsel Shri V. M. Doiphode submitted that the Director General of Anti-Evasion conducted raid on 11-2-97. During investigation itself, the appellants were forced to make a deposit of Rs. 40 lakhs in 2 instalments. The show cause notice was issued on 23-4-98 demanding duty of Rs. 21,76,531/-. The appellants have submitted a detailed reply rebutting all the allegations made in the show cause notice. The Commissioner of Central Excise, Trichy passed an order dated 20-4-2000 confirming duty demand of Rs. 1,67,341/- and imposed an equal amount of penalty. Consequent to the receipt of the said order, the appellants filed a refund claim on 3-5-2000 for the balance amount. The Assistant Commissioner vide order dated 11-10-2000 rejected the claim for the refund on the ground of time-bar and unjust enrichment. The Commissioner of Customs and Central excise Trichi vide order dated 9-4-2001 upheld the order passed by the Assistant Commissioner. Hence this appeal. 9.His contention is that after the Commissioner has confirmed the duty demand of Rs. 1,67,341/- and imposed equal amount of penalty, it does not call for any further levy or de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall pay the deficiency or be entitled to a refund, as the case may be". Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B as the case may. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation." 10.Since no goods were cleared, so there is no question of any demand and the same is based on hypothetical basis only. The learned Advocate drew our attention to Para 48 last lines which were passed by the Commissioner, wherein he has categori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 23-4-98 have raised demand of Rs. 21,76,531/-. Besides this, the question of time-bar does not arise as the amount deposited by the appellant cannot be treated to be a duty despite the fact that they might have reflected so in the TR challan. There was no adjudication or demand. Therefore, the provisions of unjust enrichment will not be attracted and as such, the question of time-bar also will not apply pursuant to the provisions relating to unjust enrichment. The alleged evasion of duty must be based on solid and acceptable evidence and cannot be levied to vagaries of doubt [Ambica Metal Works - 1990 (29) ECR 549]. Similarly in the case of Grewal Wheel India Ltd. reported in 2000 (116) E.L.T. 618 (T) = 1999 (34) RLT 662, the Tribunal held that the circumstantial evidence is not sufficient to establish clandestine removal and more positive evidence is necessary, the charge in the present case. The department has not brought on record any evidence to prove that the goods were removed from the factory premises without payment of duty. In the absence of any documentary evidence, the demand of duty cannot be confirmed. The private note books and the registers will have no evidentiar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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