TaxTMI 
TaxTMI 
2001 (3) TMI 595
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....ared 11051 Kgs of rubber compound waste during the period 12/94 to 3/95 and 5043 Kgs during 4/95 on payment of central excise duty @ 10% ad valorem. As the quantity cleared as waste seemed quite abnormal when compared to the production of tread rubber the Superintendent of Central Excise issued show cause notice No. 39/95, dated 21-6-1995 demanding differential duty Rs. 66,306/- for the period 12/94 to 3/95 and show cause notice No. 41/95, dated 6-7-1995 demanding differential duty Rs. 30,258/- for the period 4/95 on the belief that the tread rubber was being cleared in the guise of waste rubber compound. The Assistant Commissioner of Central Excise, Kottayam Division confirmed the demands vide common Order-in-Original Nos. 41 & 42/96, date....
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....with stay application. The stay application filed with the appeal was disposed of vide order No. 3/98, dated 31-3-1998, as per direction in O.P. No. 2658/98 of the Hon'ble High Court of Kerala, by directing M/s. Anikon Rubbers to make a pre-deposit of Rs. 38,000/- and they have complied with the same. The appeal filed by the Anikon Rubbers has been decided by the Commissioner (Appeals), Cochin vide Order-in-Appeal No. 47/2000-C.E., dated 5-7-1997. The Commissioner (Appeals) annulled the Order-in-Original Nos. 50/97 and 51/97, dated 26-5-1997 passed by the Asstt. Commissioner of Central Excise, Kottayam Division and ordered to refund the pre-deposit of Rs. 38,000/- to M/s. Anikon Rubbers. 2. Grounds in the Appeal are :  ....
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....ad tread rubber manufactured and accounted in RG 1 was sold as scrap and waste without paying correct duty of excise due for the said goods. This aspect has not been rightly examined by the Commissioner (Appeals). (d) The version of the assessee, M/s. Anikon Rubbers, before Commissioner (Appeals) that the record of personal hearing was not a true version of what he had stated before the original authority is not correct. From the records of Personal Hearing before the original authority it can be seen that the assessee himself had appeared before Assistant Commissioner for PH. The record of PH is on true version of the submission made by the assessee. In the record of PH which is an ....
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....considered the submissions and find - (a) The Commissioner (Appeals) in para 7 of his order has recorded - "07. The appellant requested for an opportunity for producing the accounts, RG 1, Form IV, etc., to prove his contention and the same was granted. The appellant produced RG 1 Account, Form IV Accounts, RT 12, etc., which was duly examined. The account produced revealed that there was such clearance of waste and scrap rubber from June, 1994 to April, 1995 and in the respective RT 12s, the production, clearance and duty paid were shown. This return were accepted by the Department. The Show Cause Notice was issued only on 21-6-1995 covering the period December, 1994 to April, 19....
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....ssioner (Appeals) has considered that the findings of the earlier Commissioner (Appeals) remanding the matter to the lower authority on "an assumption which ought to have been beginning point of the matter has been left at the assumption stage itself," efforts made, if any by the investigators have not altered this position inasmuch as what was sold as 'waste & scrap' could not be proved to be 'Tread Rubber'. The solitary evidence on record of record of personal hearing and statement recorded were not acceptable to the Commissioner to bring home the charge of clearance of 'tread rubber' in the guise of 'waste & scrap'. The Commissioner (Appeals) has found the record of personal hearing and the statement to be factually incorrect and extende....
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....read rubber'. The learned SDR feebly submitted, that the buyers as indicated on the invoices, could not be located, but the fact remains that there is no other evidence other than the solitary evidence as observed by the learned Commissioner (Appeals) in his findings, which has been found to be factually correct & reliable. We cannot establish marketability of the product actually sold, as 'Tread Rubber' on the evidence placed on record. (c) No ground has been urged, made, to challenge this findings of the Commissioner (Appeals) that the statements and records are factually inaccurate except the feeble plea of no retraction was made and the statement is voluntary. If that was so, the....