Customs, Excise and Gold Tribunal - Delhi
Sikhar Marbles (P) Ltd. vs Commissioner Of Central Excise on 2 July, 1998
Equivalent citations: 1999(105)ELT195(TRI-DEL)
ORDER Lajja Ram, Member (T)
1. This is an appeal filed by M/s. Sikhar Marbles (P) Ltd., being aggrieved with the Order-in-Original dated 3-1-1994 passed by the Collector of Central Excise, Jaipur.
2. The matter relates to the demand of Central Excise duty of Rs. 1,45,075/- in respect of the marble tiles alleged to have been removed without payment of Central Excise duty. A penalty of Rs. 20,000/- had also been imposed on the appellants by the adjudicating authority. The case was based on the private register maintained by the Sorter, Thomas George, which had been resumed by the Central Excise Officers when they visited the appellants' factory on 17-11-1991 for production based control checks. The matter had come up earlier before the Tribunal and the Tribunal under their Final Order Nos. A/165 & 166/93-NB, dated 15-3-1993 had remanded the matter on the ground that the various contentions of the appellants had not been discussed by the adjudicating authority. On de novo adjudication, the Collector of Central Excise (Appeals) had passed the present impugned order.
3. I have heard Shri A.L. Mathur, Consultant, for the appellants. Shri T.A. Arunachalam, JDR, is present for the respondents/Revenue.
4. Shri A.L. Mathur, Consultant, submitted that the private record was maintained by the Sorter for his own purpose and did not reflect the excisable production and clearance. He submitted that all the entries were covered by the excise gate passes and that except those quantities which the appellants themselves had admitted to have been removed without payment of duty, no other quantity was removed without proper excise gate passes. In so far as the admission of Director of the appellants' Company, he submitted that the duty had already been paid. It was his submission that no demand could be sustained on the basis of the private record whose entries were not authenticated. He relied upon the Tribunal's decision in the case of Kashmir Vanaspati (P) Ltd. v. CCE, 1989 (39) E.L.T. 655 (Tribunal).
5. In reply, Shri T.A. Arunachalam, JDR, submitted that the appellants' themselves had admitted clandestine removals and it shows that their records were not reliable. He reiterated the grounds taken by the adjudicating authority in confirming the demand and imposing the penalty.
6. I have carefully considered the matter. I find that the case is based on the details as contained in the private records maintained by the Sorter of the marble tiles one Thomas George. The Director of the Company in his statement recorded on 19-11-1991 had admitted that some quantity of marble tiles had not been entered in the RG-1 Register and the same had been removed without payment of Central Excise duty and without issue of gate passes. The appellants had voluntarily debited the duty amount of Rs. 1,9697- in their personal ledger account.
7. The private account maintained by the Sorter is in the form of rough noting and does not indicate any system in its maintenance. The Revenue had not been able to place any details with regard to the alleged clandestine removals. The learned Counsel had submitted that the various entries in the private account could be co-related with the subsequent gate passes under which the goods have been removed on payment of duty.
8. On the basis of the facts on record, I consider that the adjudicating authority had not been able to substantiate the allegations with regard to the payment of duty of Rs. 1,43,106/-.
9. The appellants had already admitted their duty liability in respect of the marble tiles moved without payment of duty and had deposited a sum of Rs. 1,9697- out of the total demand of Rs. 1,45,0757-. The appellants were working under the self-removal procedure under which a great trust is reposed in the assessees. Taking note of this fact and taking into account the admission of the appellants, I confirm the amount of penalty of Rs. 20,0007-imposed on the appellants. The demand of Rs. 1,969/- which the appellants had already paid is confirmed. Taking into account all the relevant facts and circumstances of the case, I set aside that part of the order which relates to the demand of Rs. 1,43,106/-.
10. In the show cause notice penal action has been proposed under Rules 9(2), 52A, 173Q and 226 of the Central Excise Rules. Under Rule 173Q a penalty not exceeding 3 times the value of the excisable goods in respect of which any contravention of the Rules has been committed could be imposed. Penalty could also be imposed under each of the Rule contravened. The contraventions of the various Rules as mentioned in the show cause notice have been kept in view while confirming the penalty involved.
11. The appeal is disposed of in the above terms.