TaxTMI 
TaxTMI 
2015 (8) TMI 739
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....oods are unaccounted. These goods were, accordingly, seized. The raiding party also visited the office premises of the appellant. It went to the dealers of the appellant and recorded their statements as well. Statements of some of the employees of the appellant company who were dealing with the affairs of the appellant were also recorded. On the basis of the aforesaid material and the statements recorded, the Department took the view that the appellant had been clandestinely removing some of the quantities of the finished goods. On this basis, a show cause notice dated 03.03.1999 was issued to the appellant company as well as its managing director. Making out the case of evasion of excise duty and suppression of facts on the part of the appellant, extended period of limitation was invoked, as per proviso to Section 11A(1) of the Central Excise Act. The appellant submitted its reply to the said show cause notice contesting the position which was taken by the Department in the said notice. The appellant submitted that there was no clandestine removal of any quantity of finished goods and the raw material was in fact used in manufacturing the finished goods. After hearing the appel....
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.... physical weight. Shri Prahalad Das Sarda, Excise (Officer & Authorised Signatory, stated that it was his function to make entries in RG-1 Register on the basis of the Packing departments reports which were prepared on the basis of actual weight. But he could not explain as to how the differential quantity of goods was disposed of. He further stated that he had only acted as per the directions of the Managing Director and the latter alone could offer any explanation. Shri J.C. Mansukhani, in his statement, admitted that in some cases of exports, the catalogue weight was higher than the physical weight and the differential quantity of goods remained in the factory. However, he could not say as to how this quantity was disposed of. In the aforesaid example, the quantity of Sections exported under GP2 No. 58 dated 29.12.93 was shown as 21986 Kgs. (catalogue weight) whereas the actual weight was only 21404.2 Kgs. The differential quantity (581.8 Kgs.) was not actually cleared and exported, though, in RG-1, it was shown as debited for clearance for export. Shri Mansukhani in his statement conceded this factual position but could not say as to how the 581.8 Kgs. of Sections remaining in ....
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....eriod of demand. This, again, cannot be accepted as J.C. Mansukhani admitted that the differential quantities remained in the factory. Such quantities which accumulated from past exports could well be removed during the period of demand. We uphold the above demand of duty for the reasons recorded." The appellant preferred further appeal to the High Court under Section 35G of the Central Excise Act. This appeal has also been dismissed by the High Court primarily on the ground that the two authorities below have looked into the facts and law in confirming the demand and a finding of fact has been arrived that it was a case of evasion of duty by resorting to clandestine manner in removing the finished goods and therefore, these findings do not call for any interference. Since the High Court has dismissed the appeal with the aforesaid observation, that was a reason for reproducing in detail, the discussion carried out by the CESTAT in its order. This is how the present appeal comes up for hearing which challenges the orders of the authorities below. In the first blush, the impression that would be gathered is that a finding of fact is arrived at by the authorities below holding tha....
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....hole of the die, after its continuous use at Press machine for extruding the required section/ finish goods, the internal diameter always expanded to some extent and therefore the dies are being manufactured accordingly so that the produced output should match the specifications. It had also taken support of the technical literature that is available in the market, to prove the aforesaid assertion. On this basis, it was stated that in the export catalogue which was prepared and issued by the appellant in order to take care of the final production with varying specifications because of the aforesaid reason, 10 per cent actual weight would be 5% more or less than the weight as mentioned in the catalogue. It was further explained that even as per the show cause notice, the difference in quantity was hardly 2 per cent. We find from the reading of the statements of Mr. Deepak Das and Mr. J. C. Mansukhani that this aspect is explained in abundance by them in their statements. After reading the statement of these two persons, we find that no such admission was made by them, as recorded in the order of the CESTAT which is extracted above. Mr. Deepak Das had only stated that "In export die....
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....ived by him. The statements made in the catalogue were also justified in the following manner: - "For export of the finished products to various countries, the noticee No. 1 has made out an Export catalogue which contains technical details of our different section; weight per meter etc. and as per the international practice, the invoicing of export dispatches is made on the basis of Catalogue weight whereas the actual weight of the section may be as per catalogue weight in most of the cases and in some case it may be 5% more or less than the weight as mentioned in the catalogue. Each export consignment consist of minimum 15-20 different varieties of section/ profiles and out of these different types, only in three four sections there can be variation and in rest of the sections, the weight is almost same. However, the aggregate value of the invoice is always as per the actual weight of the total consignment. To elaborate further, if the quantity of any particular section is 5% less than the catalogue weight, the quantity of other section will be 5% more than that of catalogue weight. The average weight of a container is thus always equal to the actual weight." It was specificall....