ORDER
S.S. Sekhon, Member (T)
1. All these stay applications are disposed of by this common order, since the issues involved are inter related.
2. Certain enquiries were caused by the officers of Anti Evasion and Show Cause Notices were issued to M/s Durian Industries Ltd and Palghar Plywood Product Pvt Ltd and other appellants herein who are dealers and employees of the firm and other persons concerned.
3. After hearing both sides, the Commissioner has dropped the charges as regards under valuation, clubbing and or eligibility to the Notification No. 1/93. However, the Commissioner has confirmed the duty demand in both these proceedings on the ground of clandestine removals. On considering that the demand of clandestine removal has been arrived at, as in the case of M/s Durian Industries Ltd, on the following findings:
“Therefore, a proper recourse — for Durian Industries — would have been to produce other corroborative documentary evidences for the transactions of “Veneer” as shown in the trading bills which according to the department are documents merely prepared to paper over the (clandestine) transactions in respect of Decorative plywood. Instead, the notices have tried to mis-lead in make believing that the transaction of repress plywood were in order which was not the charge at all. The plea of the notice to refute the charge of clandestine removal is not acceptable as they have not come with the actual clearance documents co-relate the clearance of the so called veneer.”
And this finding when considered with other conclusions and findings arrived at by the Ld Commissioner in the very same order, and after considering the submissions of the Ld Advocate for the appellants that the Show Cause Notices have been issued without concurrence/approval of the Chief Commissioner, as was required, especially in the case of M/s Phalgar Plywood Product Pvt Ltd and also the fact that M/s Durian Industries Ltd, who have been alleged to have cleared clandestinely the goods from their factory and have been found to have received the entire quantity of clandestinely removed goods from M/s Phalgar Plywood Product Pvt Ltd and on presents of the trading account submitted by them which indicates that they have traded in the following quantities-
Year Total Trading of Demands made Balance Qty on
Veneers as Plywood which no demad
has been made
Sq Mtrs Sq.Mtrs Sq Mtrs
1997-98 63,283.86 54,914.84 8,369.02
1998-99 76,025.51 32,157.66 43,867.83
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1,39,309.37 87,072.50 52,236.87
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Apart from production and manufacture of goods, it would be apparent from these quantities, that the demands are not made on all the quantities of “veneer” traded by them as per their records. When the department admits that “veneers” are being traded. It is not understood why the entire quantities shown as trading goods should not be accepted and the charges of clandestine removal need not be upheld at this prima facie stage. It is found that the appellant manufacturers have made out a good case for full waiver of duty and stay their recovery pending final disposal of the appeals. More so, when no quantity of such clandestinely removed decorative plywood has been seized and is the subject matter of these proceedings. The penalties have been imposed on various appellants herein which are also required to be ordered to be waived and recovery thereof stayed pending disposal of the appeals.
4. For the goods seized in the other set of cases, no notice appears to have been given to the persons from those premises those goods were seized. Prima facie the proceedings of confiscation and durability arrived at therefore are required to be not upheld at this stage and the matter will have to be heard in details.
5. The alternate plea for early hearing of the appeals made is also granted and the matters listed for hearing on 4.10.2004.