Customs, Excise and Gold Tribunal - Bangalore
Sarita Software And Industries Ltd. vs Commissioner Of Central Excise on 6 April, 2006
Equivalent citations: 2006(108)ECC607, 2006ECR607(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. The stay application and the appeal are taken up together for the disposal as per law after due consideration of the Miscellaneous application seeking early hearing the appeal. The duty demand of Rs. 1,31,64,837/- has been confirmed on the allegation of clandestine removal of the goods without payment of duty. The appellant is a 100% E.O.U. They are engaged in the manufacture of Polyester Texturised Yarn/Twisted Yarn (PTY); Cotton Grey Fabrics (CGF) and Polyester Grey Fabrics (PGF). Part of the goods manufactured are cleared to Domestic Tariff Area (DTA) under different schemes like EOU to EOU transfers, deemed exports and on payment of duty under relevant Notification No. 2/95 CE dated 04.01.95 as noted in the impugned order. Anti-evasion Department of the Revenue carried out examination of the records and they found that the assessee had shown excess clearance in the Balance Sheets of the years 1999-2000 and 2000-2001 and the production figures declared in the RT-13 returns for the respective years. Besides this, Sales Tax Return, Sales Registers were also examined. The Department has proceeded to alleged clandestine removal and clearance of the goods. However no statement of any functionaries of the appellant's Company has been recorded. There is no evidence in terms of the show cause notice with regard to the purchase of excess inputs, clandestine manufacture and removal of the goods without payment of duty. There is no evidence of transport for clearing the goods nor any evidence of purchase. There is also no evidence of extra receipt of funds from any person. There is no evidence of excess consumption of electricity. These are the factors in terms of the various decisions of the Tribunal and the Apex Court for confirming the charge of clandestine manufacture and removal of the goods.
2. The contention of the appellants that in the Balance Sheets for the respective years, they have not shown the details of trading activities and manufactures made in other units. The statutory RT Return is not required to be reflected the details of the trading activities. It is the compliant of the appellants before us that in terms of the enormous documentary evidence, the trading activities has not been considered by the Commissioner and due to non-application of the mind, he has violated the principles of 'Natural Justice'. The learned Counsel points out that these evidences produced have neither been examined nor the citations recorded in Sub Para v at Para 11 have been considered. The ratio of these judgments have to be discussed in the light of the facts of the case. The burden to discharge the manufacture and clandestine removal of the goods is on the Revenue and not on the assessee. It is pointed out that the Commissioner has shifted the burden on the assessee which is not as per law in the light of the enormous case laws cited by the appellants. Therefore the order is not a speaking order and is violative of Principles of 'Natural Justice' in as much as the evidence on record and the supporting rulings have not been discussed nor examined in the matter. It is submitted that on this ground alone, the appeal is required to be allowed. He submits that mere discrepancy in the figures in the Balance sheets and in the RT-13 return will not lead to a conclusion that there is clandestine manufacture and removal of the goods without payment of duty. He refers to the enormous judgments and files compilation in support of the case.
3. The learned DR on a specific query from the Bench concedes that the order is not a speaking order. He prays for remand of the matter to the Commissioner for re-adjudication in the light of the cited judgments by the learned Counsel.
4. On a careful consideration of the matter, we notice from the enormous judgments with regard to the confirmation of demand on clandestine removal of the goods that the burden is on the Revenue to discharge the allegation of clandestine removal of the goods without payment of duty. In the present matter, in terms of the show cause notice, there is no evidence of any person admitting about the purchase of raw materials and manufacturing it without accountal and clearance of the same to any specific persons. There is no flow back of funds. In these circumstances, mere discrepancy in the Balance sheets and RT-13 returns will not lead to a conclusion that there was clandestine manufacture and removal of the goods. The plea raised by the learned Counsel that their defence is supported by enormous rulings has not been examined by the Commissioner. We find that the order is not a speaking order and is clearly violative of the Principle of 'Natural Justice'. Therefore we set aside the impugned order and remand the matter to the Commissioner to examine the evidence afresh in the light of the judgments produced and the law laid down therein. The evidence produced with regard to the trading activities should be examined meticulously. The Commissioner to re-adjudicate the matter in the light of the Principles of 'Natural Justice' and the evidence produced by the appellants and to pass a detailed speaking order within a period of four months from the receipt of this order. Thus the appeal is allowed by way of remand for de novo consideration.
(Dictated and Pronounced in the open court)