TaxTMI 
TaxTMI 
2014 (8) TMI 659
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.... removal of pan masla/gutka by the appellants, remanded the matter back to the Commissioner for de-novo adjudication on the grounds that the earlier adjudication by the Additional Commissioner vide his Order in Original No.23/ADDL.COMMN./MP/97 dated 30.09.1997 of the instant case was without jurisdiction as the SCN dated 21.3.1995 relevant to the case was issued by the Commissioner and consequently the Additional Commissioner's order was without jurisdiction. Bench relied upon the decision of Allahabad High Court in the case of Jawahar vs. State reported as AIR 1968 Allahabad 87 in the matter. Revenue preferred appeal against the Tribunals above noted order before the Allahabad High Court vide CE Reference Application no. 112 of 2000 in appeal no E/678 679/98-NB(D). Hon'ble High Court decided the matter vide Order dated 9.8.2011 holding that the issue of jurisdiction was no more res-integra in terms of Supreme Court decision in the case of Pahwa Chemicals Pvt Ltd vs. CCE New Delhi ( AIR 2005 SC 1532) as well decision of Allahabad High Court in the case of CCE vs. Su Beverages (decision dated 13.12.08 in CE reference no. 2 of 2003) and therefore remanded the matter back to th....
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....ing any Central Excise gate pass and without paying central excise duty of Rs. 6,048.15. 6. Scrutiny of the PLA revealed that it contained debit entries in respect of Central excise duty paid only upto GP-1 No.5 dated 10.10.92; that there was no debit entry in respect of Shankar gutka cleared from Nai Ki Mandi under GP-1 No. 6 dated 1.11.92 to GP-1 No. 10 dated 1.12.92; that though an entry number was given in GP-1 yet no corresponding debit entry was actually made in the PLA in respect of each gate passes, they had made a consolidated debit entry of the amount of duty involved in respect of GP-1 No.6 dated 1.11.92 to GP-1 dated 25.11.92. However, in respect of GP-1 No.10 dated 1.12.92, no debit entry whatsoever was made in the PLA. Accordingly it was, therefore alleged in the SCN that M/s Narendra products, Nai Ki Mandi under GP-1 No.6 dated 1.1.92 37.5 kgs of Shankar Gutka in the form of 30,000 pouches and another 12.5 kgs of Shankar gutka contained in 10,000 pouches were cleared without payment of duty. Intelligence also showed that there was another unit of Shri Narendra Kumar at New Adarsh Nagar, Agra. This unit was found engaged in the manufacture and clearance of Shankar ....
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....ty (Rs.) Remarks 1. Narendra Prod. Nail Ki Mandi, Agra. (appellant No. 1 01.7.92 to 04.11.92 1031.25 211035.00 97076.10 Calculation as per statement dt. 18.12.92 of Shri Kamal Kumar. 2. -do- 05.11.92 to 18.12.92 5397.803 1104606.40 508118.95 Calculations of empty containers of Tobacco on 18.12.92. 3. -do- 19.12.92 to 02.01.93 4329.625 886014.46 407566.65 Calculations on the basis of the statement dt. 03.01.93 of Shri Narendra Kumar. 4. -do- Detected on 17.12.92 & 03.01.93 134.750 27575.24 12684.60 Shortage of the RG-I balance found during the physical verification. 5. -do- 01.11.92 to 01.12.92 50.00 10206.80 4695.12 Duty not paid detected during the scrutiny of GP.1 and PLA. TOTAL -do- 01.07.92 to 02.01.93 10943.428 2239437.90 ....
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....ent dated 27.12.93 of Sh. Kailash Chand, one of their authorized signatory of the appellant where he had admitted to such mixing of unbranded tobacco with the branded tobacco; that Commissioner (Appeals) had also observed that containers of unbranded tobacco too were recovered from the appellants. DR also pointed out that the demands have not been repeated and for different periods, different demands have been issued as was evident from the Chart referred above, that the unit was in operation since June 1992; that this demand was for the period 5.11.92 to 18.12.92; that for the earlier and later periods, separate demands have been issued which were mentioned in the Chart; he further argued that it was a case of clandestine manufacture and clearance of gutka by the appellants and therefore required confirmation of entire demand for which evidence was there and no concession was to be given for adjustments being sought by the appellants. 11. After considering the grounds of appeal and Revenue's arguments, we find that the appellants could not made different stands at different print of time. We note that this is a case of clandestine manufacture and clearance and therefore no adju....
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....he clandestine manufacture and clearance of the impugned goods which had also been admitted by the proprietor himself. 13. After considering the arguments of Revenue and looking to grounds of appeal of appellant and especially noticing that there was no overlapping of the demands, we agree with the DRs contention and hold that the evidence for clandestine manufacture and clearance was there. Further non-registration with central Excise department clearly manifested mens rea and in such circumstances, the inculpatory statement of the proprietor was a reliable evidence for the clandestine removal of the goods read with other evidences available on record. Accordingly we do not find any ground to interfere to the confirmation of demand of Rs. 4,07,655.65/- (Rupees four lakhs seven thousand six hundred fifty five and sisty five paisa only). (C) Demand for Rs. 15,253.60/- : 14. We notice that this demand pertained to another unit of the appellant situated in Adarsh Nagar, Agra. The period involved was 14.12.92 to 17.12.92. appellants plea was that the demand was solely based on the statements of Smt. Harbati, Smt. Angoori and Sh. Dinesh; that the cross examination of these pe....
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....vidence to deserve reconsideration. Therefore, considering all the evidence we hold that the duty confirmation for Rs. 15,253.60/- for the period 14.12.90 to 17.12.92 is justified warranting no interference. 16. The legal issue relating to jurisdiction i.e. whether the Additional Commissioner had jurisdiction to decide the case when the SCN was issued by the Commissioner having been resolved by the Hon'ble Allahabad High Court, that is no more in res-integra. 17. Another issue raised by the appellant in its grounds of appeal was that the SCN for the present appeal was barred by limitation as the investigations were common for all the SCNs issued for seizure and the instant SCN was received by them on 21.3.1995 while the investigations were over by 27.12.93 when statement of Sh. Kailash Chander was recorded; that normal period for issue of SCN was 6 months and therefore as all the evidence was before the Revenue, the undue delay in issue of SCN was not justified and the extended period of 5 years was not invokable. Law is well settled that plea of time bar does not apply to fraud done against Revenue as has been held by Apex Court in the case of CC Vs. Candid Enterprises repor....
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....d within one year from the relevant date. However, where fraud, collusion, etc., stands established the period within which the show cause notice has to be served stands enlarged by substitution of the words 'one year' by the words 'five years'. In other words the show cause notice for recovery of such duty of excise not levied etc., can be served within five years from the relevant date. Para 15. To put it differently, the proviso merely provides for a situation whereunder the provisions of sub-section (1) are recast by the legislature itself extending the period within which the show cause notice for recovery of duty of excise not levied etc. gets enlarged. This position becomes clear when one reads the Explanation in the said sub-section which only says that the period stated as to service of notice shall be excluded in computing the aforesaid period of 'one year' or 'five years' as the case may be. Para 16. The termini from which the period of 'one year' or 'five years' has to be computed is the relevant date which has been defined in sub-section (3)(ii) of Section 11A of the Act. A plain reading of the said definition shows that the concept of knowledge by the department....