Customs, Excise and Gold Tribunal - Delhi
Commissioner Of C. Ex. vs Prestige Coating Ltd. on 24 May, 2006
Equivalent citations: 2006(106)ECC442, 2006ECR442(TRI.-DELHI)
ORDER
S.S. Kang, Vice-President
1. When the case was called none appeared on behalf of the appellant in spite of notice. The Revenue filed Misc. application brought on record the statement of one Shri Rajesh Kumar Trivedi, which was recorded in relation to the copy of affidavit filed before the Commissioner (Appeals). Therefore, the Misc. application is allowed. The appellant also filed reply to the application.
2. The brief facts of the case are that the respondents are engaged in the manufacture of paints, primer and Oil bound distemper. On 4-11-96, the premises of the respondents was visited by the Revenue and on the basis of documents recovered from the premises, a show-cause notice was issued demanding duty of Rs. 2,75,763/- on the ground that the respondent manufactured and cleared the goods without payment of duty. In the show-cause notice, it was also proposed penalty on the firm as well as on Shri G.K. Agarwal, Director. The adjudicating authority confirmed the demand on the ground that private records recovered from the premises shows the clandestine clearance of excisable goods. Shri G.P. Goyal, Manager disclosed in his statement that they were manufacturing excisable goods but they did not maintain the statutory Central Excise records with regard to receipt of raw material and manufacture and removal of finished goods. The fact was also admitted by G.K. Agarwal, Managing Director in his statement dated 11-1-2000. The Managing Director admitted in his statement those respondents were manufacturing excisable goods without any intimation to the Revenue prior to 16-12-96.
3. The respondent filed appeal against the adjudication order and Commissioner (Appeals) set aside the demand and imposition of penalties on the ground that one Shri R.K. Trivedi employee of the respondents filed an affidavit to the effect that the private record do not relate to the clearance of excisable goods manufactured by the present respondent. The Commissioner (Appeals) after relying upon the statement made in the affidavit set aside the demand.
4. The contention of the Revenue is that at the time the authenticity of the affidavit enquiry was made from Shri R.K. Trivedi and he denied the fact that he has filed any affidavit before the Revenue to this effect.
5. The contention of the Revenue is also that the show-cause notice was issued on 8-1-01 and reply was filed on 29-11-01 whereby first time the affidavit was submitted to the Revenue whereas the premises of the appellant was visited on 4-11-96. The contention is that the Commissioner (Appeals) only relied upon the copy of affidavit which was filed by the present respondent and set aside the demand. The authenticity of affidavit was not gone into by the Commissioner (Appeals) now Shri R.K. Trivedi on enquiry disclosed that he has not flied any affidavit in favour of the present respondent.
6. The contention of the Revenue is that it is not only the private record prepared by Sh. R.K. Trivedi is the basis for demand. The same record was put to the Manager Shri G.P. Goyal and Shri G.K. Agarwal, Managing Director who admitted in their statement regarding the clandestine clearance of the goods manufactured by the present respondent. It is admitted by the Managing Director that they were not maintaining the statutory records and excisable goods manufactured and cleared without payment of duty. In these circumstances, in view of the fact that Sh. Trivedi denied the filing of any affidavit, hence the Commissioner (Appeals) reliance on the affidavit produced by the respondent when it is produced after four years from the visit by the Revenue officers that too without verification is not sustainable. I find that it is a fit case for reconsideration by the Commissioner (Appeals). The impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh after affording an opportunity of hearing to the present respondent. The appeals are disposed of by way of remand.
(Dictated & pronounced in open Court on 24-5-06)