ASIA TEA ENTERPRISES Vs. CCE

JUDGEMENT

(1.) This appeal is directed against Order -in -Original (De nova) No. 44/2001 (Commissioner) (De nova) dated 31.10.2001 by which Ld. Commissioner has confirmed the duty amount of Rs,1;03,102 (Rupees one lakh three thousand one hundred and two only) against the appellant under Section 11A of the Central Excise Act, 1944. A penalty of Rs. 50,000 (Rupees fifty thousand only) was also imposed on the appellant under Rule 173Q of erstwhile Central Excise Rules, 1944 read with Rule 25 of Central Excise (No. 2) Rules, 2001 as revalidated vide Section 38A of the Central Excise Act, 1944.

(2.) This is the second round of litigation and in the first round the Tribunal had remanded the case back to the Ld. Commissioner for de novo consideration after observing the principles of natural justice, after giving the appellant an opportunity of personal hearing. The Hon'ble Tribunal vide Final Order No. 354/2001 dated 5.3.2001 had set aside the Order -in -Original No. 21/90 dated 30.10.90 of the Commissioner of Central Excise, Coimbatore by which the Ld. Commissioner had confirmed an amount of Rs. 5,26,434.84 on the appellant and had also imposed a penalty of Rs. 1 lakh under Rules 9(2) and 173Q of the Central Excise Rules, 1944.

(3.) Shri T.S. Balasubramaniam, Adv. for the appellant invited our attention to the submission made by him before the Commissioner of Central Excise, Coimbatore. The matter of de novo proceedings has arisen from the Final Order No. 354/2001 dated 5.3.2001 of CEGAT and he had submitted before the Commissioner that even in the worst scenario if the allegation that the notice sold 50 grams packets while invoicing them as 1 kg., this stand can be sustained only with reference to the sales to parties other than the two mentioned in para 10 of his written submission before the learned Commissioner. He also invited our attention to the above submission in which he had submitted before the Ld. Commissioner that the final demand is to be confirmed as per the submission mentioned above then for quantity of 41657.5 kgs. (sic) 50 gms. Packet price @ Rs. 77.50 has to be adopted. If so calculated the duty liability would be around Rs. 85,200. He also submitted in his written submission before the Commissioner that the above submissions were alternative plea and there is no admission by the notice in this regard. Therefore there could be no penalty in this case. He also submitted that simple return of notice is not an evidence that the party to whom the goods were sold were non -existent and they had submitted the sales tax return and assessment orders to establish the existence of these parties. He also submitted that they had sought for cross -examination of all the witnesses whose statement had been recorded in this proceedings and only a few witnesses had appeared. He further submitted that the deposition of witnesses who appeared for cross -examination before Ld. Commissioner are in their favour and therefore statement recorded from the witnesses who have not been produced for cross examination has to be ignored. He further submitted that the evidence on record regarding 50 gms. packet does not disclose excess payment by them over and above the invoice price and the record of cross -examination also confirms that payment had been made only as per invoice.