Customs, Excise and Gold Tribunal - Bangalore
Remington Rand Of India Ltd. And Shri ... vs Commissioner Of Central Excise on 1 September, 2004
Equivalent citations: 2005(98)ECC258
ORDER K.C. Mamgain, Member (T)
1. These two appeals filed by M/s Remington Rand of India Ltd. and Shri A.K. Pal, Plant Manager, are against the Order-in-Original No. C.Ex/10/97 dated 27.10.97 passed by the Commissioner of Central Excise, Bangalore. Shri S.R. Madhava Murthy consultant appeared for the appellants and Shri P.M. Saleem learned SDR appeared for the revenue.
2. The facts in brief are that on the basis of Intelligence that M/s Remington Rand (I) Ltd., are clearing spares/components of electronic push buttons telephones without payment of duty, the central excise officers conducted necessary verification and on scrutiny of the records both statutory and private maintained by the appellant and on making investigations through their concerned employees it was found that they had cleared electronic push button telephones, their plastic parts and electronic components without payment of duty amounting to Rs. 12,32,465.66 during the period from 4.12.90 to 23.9.95. During investigation, statement of Shri D.S. Harisha, Shri P.B. Sachidananda, Shri Arun Kumar and Shri A.K Pal, Plant Manager were recorded. Shri D.S. Harisha in his statement dated 10.11.95 had inter-alia stated that he used to carry the components required for replacement under a material gate pass which was an internal document prepared during his visit to DOT Calicut, Hyderabad Cannanore and their branch offices at Mumbai. These goods were cleared without central excise gate pass/invoice. On certain occasions, invoices were raised for partial quantities. The frequently noticed defective components were capacitors, ICs which require replacement and these were not accompanied by Central Excise gate pass/invoices. Shri A.K. Paul, Plant Manager, in his statement dated 13.11.95 stated that samples were also cleared without payment of Central Excise duty. Based on investigation, show cause notice was issued to M/s RRIL demanding duty of Rs. 12,32,465.66 under proviso to Section 11A and proposing penalty under Rule 173Q of Central Excise Rules. Show cause notices were also issued to Shri A.K. Pal Plant Manager, Shri D.S. Harisha Service Engineer, Shri P.V. Sanjay store in charge and Shri Arun Kumar Assistant of M/s RRIL for imposing penalty on them under Rule 209A of Central Excise Rules. The case was adjudicated by the Commissioner under the impugned order. He found the charges established against the appellants but reduced duty demanded to Rs. 10,85,724 and imposed a penalty of Rs. 5 lakhs on M/s. RRIL. He also imposed penalty of Rs. 10,000 on Shri A.K. Paul, Plant Manager of M/s RRIL and penalty of Rs. 5000 each on Shri D.S. Harisha, Shri P.B. Sachidananda and Shri P. Arun Kumar under Rule 209A of Central Excise Rules.
3. In their appeal petition it is pleaded that the entire investigation and impugned order is based on outward and inward records maintained by the security staff at gate. The inward and outward records maintained by security are not records, which are scrutinized by the appellant or authenticated by them. The security staff are not the employees of the appellant Company but they are from a hired agency. The appellants had submitted detailed point-wise comments to the Commissioner and the official document for removal of goods namely GPIs and delivery challan tallies in respect of quantity of excisable goods removed. There have been certain lapses in observing the procedure prescribed under various rules like 57F(1), 57F(2) 173(H) etc. The Commissioner has erred in relying on the investigation report of the Officer, as the investigating officer did not verify the various connected records referred to by the appellants but relied on the record maintained by security staff. They have not removed any goods with an intention to evade payment of duty. Shri A.K. Pal, Plant Manager in his appeal petition pleaded that the department has referred the fact that all the removals have taken place under internal documents maintained by the Company such as material gate pass delivery challan etc. Therefore, nothing has been done by the Company clandestinely and there was no intention to evade central excise duty. He never indulged in any activity with a mala fide intention. In his statement given to investigating agency he has given full details and circumstances and entire activity of company and it is amply proved that there was no intention to hide any fact from the department with an intention to evade payment of duty. In the absence of any mala fide intention on his part he is not liable for any penal action under Rule 209-A.
4. Shri Madhava Murthy learned consultant appearing for the appellants have reiterated the points already taken in the appeal Memo.
5. Shri P.M. Saleem learned SDR appearing for revenue submitted the para-wise comments of the Commissionerate wherein it is stated that Shri A.K. Pal, Plant Manager of M/s RRIL, has admitted that the goods referred to in the statements are accounted and removed on their internal documents namely material gate pass and security register both inward and out-ward. Therefore, no statement was required to be recorded from security staff. The duty was quantified based on internal documents namely material gate pass, security gate pass file and security onward register, which were seized by the investigating officer. The Commissioner in his order from Para 59-62, had given his findings. The show cause notice was issued demanding duty of Rs. 12,32,465.66, but the adjudicating authority after giving relief to the appellant and discussing 16 statements covering each of the issue individually including job work records confirmed the demands of only for Rs. 10,85,724.66. It is very clear from the Commissioner's order that the appellants had cleared the goods without payment of duty, which was admitted by them and therefore the grounds now mentioned in their appeal have no merit and their appeal deserves rejection.
6. We have carefully considered the submissions made by both the sides. We find that during adjudication proceedings all the clearances as shown in the show cause notice without payment of duty were classified by the appellants under 16 broad headings and they submitted 16 statements connected to each heading. The detailed explanation given by the appellants for each clearance under the 16 statements submitted by them was got verified by the Commissioner through the Assistant Commissioner from the records of the appellant and after getting verification report and after getting the details verified as furnished by the appellant and after hearing them, Commissioner gave his findings for each statement. In his order, he found that, out of total demands of Rs. 12,32,465.66 the charges against the appellants were established only for Rs. 10,85,724.66. He accordingly confirmed this amount as payable by the appellants and imposed penalty. We find that in the appeal petition, the appellants have challenged the findings of the Commissioner on various grounds but they could not establish by any evidence the findings of the Commissioner regarding clandestine clearances or clearances without payment of duty. Shri Madhava Murthy learned counsel appearing for the appellants also could not furnish any evidence despite the fact that they were given large number of adjournments. In the absence of reliable evidence to show that the findings of Commissioner is not correct, we do not find any reason to interfere with the findings of the Commissioner when he has given his findings after getting the details verified form the documents of the appellants and each entry is discussed by him. In the circumstances the duty demand is based on the proven evidences.
No contrary evidence could be produced by the appellants and the penalty imposed is also reasonable. Therefore, we do not find any merit in these two appeals. We therefore reject both the appeals.