COMMISSIONER OF CENTRAL EXCISE Vs. GOVIND MILLS LTD

JUDGEMENT

(1.) The Customs, Excise and Service Tax Appellate Tribunal, West Block No. 2, R.K. Puram, New Delhi (hereinafter referred to as "the Tribunal") has referred the following question, for opinion to this court, under section 35H of the Central Excise Act, 1944 (herein after referred to as the Act):

(2.) The respondent, through his letter dated October 16, 1997, filed an objection against the provisional determination, on which a team of the officers and technical expert physically measured the various parameters of induction furnaces of the respondent on February 13, 1998 and submitted its report. On the basis of this report, the Department by letter dated March 20, 1998 determined the ACP as 26,912.960 M.T. and MDL as Rs. 14,01,717 with effect from September 1, 1997. The respondent again filed an objection dated March 26, 1998 against the aforesaid determination and requested for determination of ACP and MDL according to the capacity shown in the invoices and certificates of the manufacturer of the crucibles. The Commissioner of Central Excise, Allahabad, vide the order dated April 1, 1998, relying upon the invoices and certificates finally determined the ACP and MDL as Rs. 11,75,833 with effect from September 1, 1997 and assessed excise duty on it.

(3.) Subsequently, an investigation was made by the excise officer against M/s. Steadfast Engineers, the manufacturer of crucibles of the respondent. During investigation, statement of Deepak Gupta, a partner of M/s. Steadfast Engineers, was recorded by the excise officer on August 20, 1998, in which he had stated that invoices issued to the respondent did not show the correct annual capacity of production and were issued without any knowledge that it would be used for Central excise purposes and had he known that the invoices would be used for Central excise purposes then he would not had issued the invoices. On the basis of the statement of Deepak Gupta, the excise officer submitted a report to the Commissioner of Central excise, Allahabad that the respondent had secured the assessment on the basis of the forged papers. The Commissioner of Central Excise, Allahabad reopened the proceedings against the respondent and issued a show-cause notice dated November 17, 1998 for revoking the order dated April 1, 1998 and fresh determination of the ACP and MDL and recovery of differential short-duty along with interest and penalty, on the ground that final determination dated April 1, 1998 was obtained by producing forged and fabricated documents. Simultaneous notice has also been issued to Deepak Gupta.