SHARON VENEERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) BY these appeals the appellants challenge the Order -in -Original No. 35/95, dated 3 -4 -95 passed by the Collector of Central Excise, Madras by which he has confirmed a duty demand of Rs. 58,94,712.07 under Section 11A(2) read with proviso to Section 11(1) of the CE Act, 1944 besides imposing penalty of Rs. 6,00,000/ - under Rule 173Q of the CE Rules, 1944 on the appellant -company.

(2.) Other two appellants have been imposed penalty of Rs. 1,00,000/ - and Rs. 10,000/ - respectively under Rule 173Q of the CE Rules, 1944.

(3.) SHRI PS Raman, learned Counsel appearing for the appellants reiterated the grounds of appeal and also referred to the brief synopsis of the case submitted by them in the Court on 24 -7 -2001 together with a statement showing the names of dealers, buyers and consignment agents, value of the plywood purchased and the percentage of sales value. The statement also indicates the date of search by the departmental officers. The learned Counsel submitted that there was no application of mind by the adjudicating authority as there was no evidence either in regard to flow back of cash or in regard to nature of transaction in sawn timber. He further submitted that statements of 15 persons (dealers/purchasers) who gave statements in favour of the appellants have not been taken into consideration while holding against the appellants. The learned Counsel also questioned the way in which the demand is quantified in that based on one solitary slip, on which the appellants had no opportunity to examine and confront the department and based on which the differential duty has been arrived at. He submitted that there was no seizure of the goods and hence uncorroborated and retracted statements cannot be relied upon. He submitted that the dealer viz. M/s. TNTC has been termed as a dummy unit of the appellants which is incorrect inasmuch as the unit has been registered under sales tax and they have their own premises and employees and were maintaining books of account for all transactions. He has vehemently argued that out of 171 consignments transported in 71 vehicles, 125 consignments covering 70% of the sales are covered by valid transport documents and consignments transported by 46 vehicles were rejected on the ground that the same were found to be not lorries. As regards invocation of extended period of limitation, he submitted that there was no charge of clandestine removal of the goods, the appellants have filed invoice under Rule 173C, declaration filed has been approved by the Assistant Commissioner, GP -I was scrutinized and RT 12 returns were assessed. Therefore, invoking the proviso to Section 11A(1) is not maintainable. He also cited the order of this Bench in the case of VG Plywood Ind. (P) Ltd. and three others v. CCE, Chennai reported in 2001 (5) ECL 160 wherein in an identical matter the Tribunal had set aside the duty demanded and the matter was remanded for de novo consideration for the limited purpose of deciding the charge of under -valuation and clandestine removal. He, therefore, prayed for setting aside the order and allowing the appeals.