TaxTMI 
TaxTMI 
2006 (1) TMI 26
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....the Addi. Commissioner did not pass any adjudication order of the matter. Further, statements of Aziz Vagh, Ibrahim Khan and T. Ashok Kumar and Nagaraj were recorded on 29-6-2000, 30-6-2000 and 11-8-2000, respectively. Consequently, a second Show Cause Notice dated 2-2-2001 was issued. The main charges were set out as follows: (a) they have manufactured arid cleared various varieties of plywood as detailed in Annexures A to F and H without raising any in voice/in excess of the quantity indicated in the invoices when compared with the corresponding loading slips; cleared teak veneers in stead of jungle wood veneer, both side teak instead of one side teak, one side rose wood instead of commercial plywood, White Cedar instead of Commercial plywood, etc., actually shown in the invoices and collected premium over and above the value indicated in the invoice on the various types of plywood cleared by them and with out properly determining and paying appropriate Central Excise Duty during the period from 1995-96 to 1998-99 by deliberately suppressing the above facts from the department with an intent to evade payment of Central Excise duty and the duty so evaded during the said period wo....
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....) Production slips in file No. "Z" under pages 1 to 25. (17) Purchase orders, order confirmation etc., in file "X" under pages 1 to 41. (18) Katcha Slips in file "V" under pages 1 to 12. (19) Sample of loading slips, corresponding invoice copies and RG 1 in file "W" under pages 1 to 37. (20) Sample of loading slips, corresponding invoice copies and RG 1 in file "Y" under pages 1 to 21. 3. The Adjudicating Authority passed an Order No. 8/2001, dated 6-12-2001 confirming the demand of duty, ordering confiscation of goods seized and imposing penalties. The appellants approached the Tribunal. The Tribunal in its Order dt.26-3-20&2 remanded the matter to the Adjudicating Authority on the ground of rejecting the request for cross-examination of the witnesses. Thereafter, in compliance with the Tribunals direction, the Commissioner granted cross- examination of the witnesses. The de novo Order-in-Original No. 27/2002, dt.29/31-10-2002 was passed by the Commissioner. This order has been challenged in this appeal. 4. The gist of the Order-in-Original is as hereunder: Demand of Duty SL No. Annexure Amount Reason for confirmation of demand 1. A &....
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..... The Commissioner in the clarification dated 8-5-2001 has stated that the "Premium Sheet" was pre pared on the basis of Katcha Slips Nos. 1 to 12 recovered from the premises of the assessee. From the above it is clear that the "Premium Sheet" was prepared by the Department on the basis of Katcha Slips alleged to have been recovered from the premises of the assessee. The Mahazar dated 17-2-99 does not indicate that the Katcha Slips were recovered from the premises of the assessee. The Katcha Slips were computer print-outs and were unsigned and unauthenticated. There was also no evidence that a responsible official of the appellants unit generated the said computer print-outs from the computers belonging to M/s. HPW. Further, there is no evidence from any of the customers that they have paid any premium even in a single transaction, even though differential duty is demanded for a period of 5 years involving more than 1000 transactions. Hence, Annexure-G "Premium Sheet" is a fabricated false evidence prepared by certain officers in the Department in order to support the demands made in the Show Cause Notice. (ii) The Premium Sheet was not the subject matter of recording statements o....
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....have made any payment in excess of the amounts shown in the invoices. (vii) The direct evidence available in the form of deposition of Sri Prakash Chand Bumb of M/s. Marudhar Plywood before the Adjudicating Authority on 3-9-2002 would further disprove the allegations made in the Show Cause Notice. (viii)Referring to Paras 97 to 101 of the impugned Order, the learned Ad submitted that the Department in its letter dated 25-5- 2001 that the Katcha Slips 1 to 12 were recovered from the premises of the assessee. A perusal of the Mahazar dt.17-2-99 indicates that the Katcha Slips were not recovered from the premises of the assessee. In Para 97, the Commissioner has stated that Mr. Aziz Vagh had handed over 12 Katcha Slips duly signed by him on 18-2-99 while recording the statement. Sri Aziz could not have handed over the Katcha Slips on 18-2-99 if the case is carefully examined. Sri Aziz retracted his statement on 18-2-99 on the ground that the same was recorded under threat and coercion. On 29-6-2000 and also during the cross-examination on 3-9-2002 he explained as to how he was threatened, abused, beaten dragged by the collar, etc., by the Investigating Officer. He has stated that he....
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.... mount as additional consideration. The learned Advocate submitted that the above conclusion is only on the basis of certain assumptions and presumptions. The advocate pointed out that the quality of veneers will decide the same price and irrespective of species of timber, they have to be categorised as low categories veneers or jungle wood veneers or commercial veneers. Our attention was invited to IS 1328:1996 issued by the Bureau of Indian Standards with regard to specification of Veneered Decorative Plywood. (ix) The demand of duty computed under Annexure A-D of the Show cause notice and confirmed in the impugned order is on the basis of the alleged discrepancies between the loading details and invoices. The loading slips. were prepared on the basis of Purchase Orders given to the customers. These slips were thereafter sent to the office for preparation of invoices, while preparing the invoices, the changes in the customers requirements from the time of placing the order to the time of despatch of goods, carrying capacity of the vehicdes, availability of goods for despatch and other commercial considerations were taken into account. After the invoices are prepared, the same we....
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....ne. (x) The demand of differential duty of Rs. 3,14,007/- under Annexure A is on the ground that the goods were cleared without any invoice. This demand is not sustainable because the quantity as shown in the loading Slips were not removed from the factory. The demand of duty of Rs. 3,75,459/- under Annexure-B is on the ground that the goods were cleared in excess of the quantity shown in the invoices. The clearance of goods under invoices is corroborated by Despatch Register, Loading Register, Pass Out, Time Office Daily Register, Form 39 and Declarations for Transit Insurance for the goods. Form 39 is a statutory document, under Section 28A of the Karnataka Sales Tax Act, 1957. This Form is required to accompany each consignment removed and the quantity and description of the goods are subject to verification at Commercial Tax Check Posts en route. The Statutory documents/Returns accepted by other Departments are to be accepted by the Central Excise Department only in terms of the decision of the Tribunal in the case of Kanan Foam Industries v. CCE - 1993 (68) E.L.T. (T). There is also no evidence of receipt of additional consideration on account of excess removal and receipt of....
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....s regards, the demand of duty of Rs. 8,983/- on account of non- accounted in the RG 1 register, it was submitted that the goods would be entered in the register only after inspection for defects. The plywood sheets which are fully manufactured and do not require any further processes are only entered in the Register of the finished goods. In this connection, he relied on the CBEC Circular dated 9-11-64 prescribing the stage of accounting of plywood in RG 1. Hence, he submitted that the demand of duty is not sustainable. Further he submitted that confiscation under Rule 173Q (1) is not attracted when the goods are lying within the factory. He relied on the decisiort of Kanthal India Ltd. v. CCE, Allahabad - 1999 (108) E.L.T. 385 (T.):4999 (31) RLT 547 (T), wherein it is held that the confiscation and redemption fine in respect of goods not accounted for in RG 1 and where there is no attempt to remove the goods without payment of duty and the goods are within the factory are not sustainable. (xiv) The bulk of the demand of duty is for the period prior to 28-9-96. Only on 28-9-96 interest under Section 11AB was introduced in the statute, therefore the demand of interest prior to 28-9....
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....ce at all to this document. In reply to the appellants' clarification as regards the origin of the so-called Premium Sheet, it was replied by the Revenue that the same has been prepared on the basis of Katcha Slips. Further, the so-called Katcha Slips 1 to 12 have also not been seized on 17-2-99, when the searches took place. The entire charge of under valuation is based on the unauthenticated Premium Sheet, which is supposed to have been prepared on the basis of Katcha Slips. It is not clear as to who prepared the Premium Sheet. The appellants allege that it is a document fabricated by the Department. According to the Adjudicating Authority, the Premium Sheet has been recovered from the assessee's factory premises on 17-2-99. She has stated that the Premium Sheet forms the very basis on which Katcha slips have been generated by Aziz Vagh to collect the amounts due in respect of clandestine clearances affected by them. She has also referred to the statement of Aziz Vogh dated 18-2-99, wherein he stated that Katcha Slips were in custody of his father Mr. Moiz Vagh and subsequently in the course of his statement voluntary corrected himself that his earlier version was not true and as....
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....the factory gate, "Time Office Daily Reports" and Statement of Insurance for goods intransit. The appellants have produced all the above evidences to show that what. been cleared is only as per the invoices and not as per loading details slips. The Adjudicating Authority has stated that each loading details slips has been signed by the driver to the effect that the goods have been loaded in the vehicle. From this she comes to the conclusion that the clearances are only as per the 'loading details slips and not as per invoice. Even if we concede this there should be corroborative evidences from the customer's end and also evidence of additional consideration. In the absence of corroborative evidences we are not able to sustain the allegation that the goods have been loaded only according to the loading details slips. 9. Again in respect of the charge that goods of higher value have been cleared in the guise of goods of lower value, we do not find any evidence in the form of additional consideration received. In respect of the demand of duty on the goods, which are not accounted for in the RG 1 register, we find that the goods were not entered as they were due for inspection. In any....