BINNY LTD. Vs. COMMISSIONER OF CENTRAL EXCISE, BANGALORE

JUDGEMENT

(1.) FOR the purpose of hearing the appeal, the appellants are required to pre -deposit Rs. 11,40,481/ -. The original authority had come to the conclusion that the value declared for captive consumption is lower, then the same goods removed and sold to outside purchasers. Therefore, the value was revised in terms of Rules 4 and 5 of the Central Excise Rules, 1944, read with Rule 6(b). It is the contention of the learned Advocate that on a similar proceedings initiated, the lower authority called for all the evidences and after due consideration, the proceedings were dropped by holding that the goods removed outside the factory were different from the one consumed inside the factory, in Order -in -Original No. 89/2003, dated 30th December, 2003. It is his further contention that the Commissioner, while hearing the Stay under Section 35F of the Act, had gone into this question and had directed them to pre -deposit only Rs. 1,00,000/ - on the basis of notional profit earned by them. It is his submission that the Department did not produce any evidence to show that the goods which were removed outside the factory by them were the same as the one consumed inside the factory. He submits that in view of the facts and circumstances and also on the basis of financial hardship pleaded by them, the stay application may be allowed.

(2.) LEARNED DR submitted that it was for the assessee to have produced the evidence to show that the goods removed outside the factory were different from the one consumed by them inside the factory. It is his further contention that the relied Order -in -Original No. 89/2003 refers to different types of goods and not the one which is involved in the matter.

(3.) IN counter reply, the learned Advocate submitted that the goods which were removed from the factory went for manufacture of Tarpaulins. The strength of the goods removed were different, while the one which were consumed inside the factory were cotton yarn for manufacture of grey fabric. This fact was brought to the notice of the Commissioner.