A.M. INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE facts of this case are briefly stated below: Central Excise Officers visited the appellants' premises on 24 -9 -1997 and found a shortage of 12 tractor rims and also 143 crane rims vis -a -vis the recorded balance in RG -1 register. The proceedings of the visiting officers were witnessed by one of the partners of the appellants firm, viz. Vijay Kumar, who admitted the shortage as found by the officers. The Central Excise duty on 12 tractor rims and that on the 143 crane rims found short, amounting to Rs. 324/ - and Rs. 30,888/ - respectively, were paid on the same day by way of appropriate debits in the appellants RG -23A Part II. The Department proposed to confirm such duty and to impose penalty on the appellants on the ground of alleged contravention of Central Excise Rules. They alleged that the goods found short had been removed clandestinely without payment of Central Excise duty and without following Central Excise procedure as laid down by the relevant Rules. The appellants contested the allegations of the Department contained in the show cause notice. The dispute was adjudicated by the jurisdictional Assistant Commissioner who confirmed the demand of duty of Rs. 324/ - and Rs. 30,888/ - and also imposed a penalty of Rs. 5,000/ - under rule 9(2) and Rule 173Q of the Central Excise Rules. The appeal filed against the order of the Assistant Commissioner was rejected by the Commissioner (Appeals) who endorsed the findings of the lower authority and upheld the order of that authority. The present appeal by the party is against this order of the Commissioner (Appeals).

(2.) I have carefully examined the orders of the lower authorities and connected records. I have also heard Shri Alok Arora, learned Advocate for the appellants and Shri A.K. Jain, learned JDR for the respondent.

(3.) LEARNED Advocate has reiterated the grounds of the appeal and has submitted that the adjudicating authority did not at all consider the fax message dated 25 -9 -1997 and the subsequent letter dated 26 -9 -97 sent on behalf of the appellants by Shri Vijay Kumar. In the fax message as well as in the letter, the appellants had stated that the rims in question were actually lying in the factory but were not noted by the visiting officers. They had also stated to the effect that the rims had been kept for painting and subsequent supply to original manufacturers of excavator, crane, tractors etc.. Learned Advocate submits with emphasis that the Department, on receipt of the fax message and letter, ought to have conducted a physical verification to ascertain the veracity of the facts pleaded by the appellants in the fax message and the letter. He submits that the wheel rims were subsequently painted and removed on payment of duty and thereby the appellants paid duty on the same goods twice. Learned Advocate has, in support of the appellants plea for a reverification by the Department, relied on the decision of this Tribunal in the case of Triveni Engineering Works v. Collector of Central Excise, Allahabad [2000 (116) E.L.T. 252 (T)]. Learned Advocate contends that the order passed by the adjudicating authority without considering the appellants' request for reverification and also the order of the lower appellate authority upholding the order of adjudication cannot be sustained. He prays for allowing the appeal on these grounds.