TaxTMI 
TaxTMI 
2013 (9) TMI 280
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....lant and penalty of Rs. 5 Lakhs on the appellant and personal penalty of Rs. 2 Lakh on the partner. The order of the Commissioner was challenged before the Tribunal and Tribunal vide order dated 01.12.2000 dismissed the appeals filed. This order of the Tribunal was challenged by filing a writ petition before the Hon'ble High Court of Gujarat and the Hon'ble High Court vide order dated 22.2.2011 quashed the order of this Tribunal and remanded the matter back to the Tribunal to decide the matter afresh. 2. Before we proceed further, it would be appropriate to reproduce the observations of the Hon'ble High Court of Gujarat so that there is clarity in the scope of fresh consideration of the issue:- 9. On a plain reading of the findings recorded by the Tribunal, it is apparent that the only finding recorded by the Tribunal is that the facts brought in the case of M/s. Bal Krishan Textile (P) Ltd. are different from the facts of the case of the petitioners without even a whisper as to how the facts of the present case are different from the facts of the said case and as to what were the distinguishing features between the two cases. Thereafter, the Tribunal has merely held that the....
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.... preparing gate pass. They were raising invoice for job charges + excise duty. He admitted that 18027.50 L. Mtrs processed fabrics seized at Shri Ram Folding Works without payment of duty. (vii) Shri Babulal alias Nanubhai R. Shah of M/s. Pinky Textile, stated that they sold grey polyester fabrics to various processors including Shri Narayan Textile Mills; the said sold goods duly processed by above processors were being received in his another trading firm M/s. Vipul Traders; that they had not filed declarations as required under Notification No. 305/77. Nearly 18000 L. Mtrs lying with Shri Ram Folding works belonged to him and received on 21.06.89 evening from M/s. Shree Narayan Textile duly processed without cover of Central Excise gate pass and without payment of Central Excise duty. M/s. Vipul, M/s. Jignesh Textiles belongs to him. Fabrics 33,465 L. Mtrs seized at his shop on 01.08.1989 were processed at M/s. Narayan Textiles without payment of duty. He also stated that his fabrics were processed by M/s. Narayan Textiles, M/s. Jag Fashion process and M/s. Jagdish Processors. 40% of there goods are processed by M/s. Narayan Textile. (viii) Shri Prakash R. Shah, partner of....
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....as per instructions of M/s. Vipul and the duty liability stands paid off by the appellant on the very next day when the said amount came to be disbursed by Shri Babubhai to them. Issue C - Demand has been raised on excess quantity of 14,921 L. Mtrs of processed fabric found in the premise of the appellant without any final entry in the RG-1 Register. Findings- No explanation afforded during investigation or adjudication regarding the excess quantity of processed fabric found in the premise (Internal pg. 24). The fabrics were ready for clearance and could have been cleared without payment of duty (Internal pg. 28). Entry in the RG-1 register only with a pencil and no final entry made regarding the excess quantity. Submission -Quantity of such fabric duly entered in the lot register as also the raw material account. Only a temporary entry entered in the RG-1 register as the said lot of processed fabric was pending approval from the merchant manufacturer, upon which a final entry would have been made in the RG-1 register and goods would have been cleared only on payment of duty. Issue D & E- Demands are raised on quantities of processed fabric seized at the shop o....
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....e fabrics were processed for Vipul Traders and Pinky Fabarics had clearly stated that he received all fabrics processed for Vipul Traders and Pinky Fabrics, without payment of duty. The statement of proprietor of Shriram Foldings, Proprietor of Vipul Traders coupled with excess stock found in the premises of Vipul Traders and Pinky Fabrics and also the excess stock found in the premises of appellant, would show that appellant was following a practice of clearing the goods without payment of duty. The next question is, whether the approximation made by Shri Babulal Shah can be accepted for the purpose of quantification of duty. It is to be noted that this quantity was worked out by the trader based on his own bills and invoices under which the goods were sold by him and not on the basis of imagination. Another important fact that is to be taken note of is that in the case of Shri Prakash Shah, another trader and partner of M/s. Denish Textile and Pooja Fabrics, the exact quantity was worked out based on records and details given by him. Both the traders exclusively referred to their own accounts and this was verified by the officers also. Therefore, it has to be noted that the entir....
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....resent case. Another important factor to be taken note of is that Commissioner who passed the order in the case of Balkrishna Textiles was the same Commissioner who passed the order in the case of appellants also. The Commissioner took note of the fact that, at the time of visit of officers on 22.6.1989 to M/s. Pooja Fabrics, the goods found in the premises was that of M/s. Narayan Textile Mills and in the Panchnama, Shri Babulal Shah had stated that he used to get mainly the processing done from M/s. Narayan Textiles and from other processing houses he received very less. He has taken note of the fact that the fabrics seized from the premises of M/s. Pooja Fabrics and M/s. Denish Textiles as per Panchnama dated 22.6.1989 and 01.8.1989 were clearly not processed in the factory of M/s. Balkrishna Textiles Pvt. Limited. Taking note of the facts relating to the folding, the Commissioner observed that in case of some other process houses through whom Shri Prakash R. Shah was also getting his fabrics processed, searches in the folder's premises had left positive and direct evidence of clearance of processed fabrics from the processors to the folder works without payment of duty. No such....
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....ived the money appellant had lien on the fabrics as per law and should have utilised the same. If he chooses to violate the law and supplied goods, he has to take the consequences for removing the goods without payment of duty. 14. As regards the Issue 'C', it was submitted that there was entry in the Lot Register which would make it clear that the goods could not have been cleared without payment of duty. It was also submitted that the fact that there was temporary entry and there were entries in raw material register and lot register, would show bonafides of the assessee. It was the submission of the learned counsel that the lot of processed fabrics was pending approval from the merchant manufacturer. In any case, if the lot was not approved by the manufacturer, the same need not have been entered into any register. 15. As regards the Issue 'D' &'E', the defence was that the seized fabrics did not bear the name of the process house as required under the provisions of Textile Control Order. We have already seen the way appellants have followed the law as regards Central Excise law and Procedure. It is the submission of the learned advocate that appellants were strict in foll....