ORDER
R. Jayaraman, Member (T)
1. This is an appeal against the order-in-appeal No. AMP-773/PN-353/87, dated 8-6-1988.
2. The facts of the case are that the appellants are manufacturers of sodium bi-chromate. It was noticed by the officers that though the daily production report for the date 7-9-1981 was showing 22 M.Ts., as per the entries in the RG 1 register, only 10 MTs. was accounted for and hence it was alleged that 12 M.Ts. have not been accounted for by proper clearance and the duty is payable on the same and a demand for a sum of Rs. 19,845/- was made on the appellants. The said demand was confirmed. In the appeal before the Collector (Appeals) he also confirmed the said order. Hence, the present appeal before the Tribunal. The appellants have requested for decision on merits without their presence.
3. Shri Arun Tandon, the ld. JDR, pleads that there is no dispute that there was a production report for 22 M.Ts. of sodium bichromate for the date 7-9-1981 and it has to be established by them as to whether this report is wrongly prepared. They cannot expect the Department to presume that the subsequent accountal of 12 M.Ts. on 11-9-1981 could be related to the production report of 7-9-1981. On the ground of time bar pleaded by the appellants, he contended that the scrutiny of the private records was conducted only during 1983 by the audit and they were not revealed to the Department earlier. Hence, there is suppression of production to the extent 12 M.Tons. and hence demand is justified.
4. On a persual of the appeal memorandum and their written submission, the appellants have mainly pleaded on the ground of time bar pointing out that the error in regard to the production had been committed on 7-9-1981 and the show cause notice has been issued on 2-1-1985. Hence, the demand is time barred. They also contended that the preparation of the incorrect production report was duly brought to the notice of the proper officer and the stock taking officers and a suitable remark was also made on the production report. They contend that the production report was incorrectly made on 7-9-1981 for 22 M.Ts. and only 10 M.Ts. was accounted and cleared and the remaining 12 M.Ts. were accounted for in RG-I on 11-9-1981. If the duty is demanded on 12 M.Ts. as relating to the production not recorded on 7-9-1981, it would amount to double payment of duty on the same goods.
5. After considering the plea made in their appeal and also taking into account the arguments advanced by Shri Tandon, I find that the factory records were audited in 1983, according to which the officers seem to have noticed the discrepancy long back. All the same the demand has been made only in the year 1985 and strangely no penalty has been imposed. If it is a case of clandestine removal of this much of quantity, penal provisions would have been normally involved. Moreover, there is no dispute that 12 MTs. were accounted for on 11-9-1981 and cleared on payment of duty subsequently. There are no evidences to show that the excess production of 12 MTs. alleged to have been not accounted in RG 1 on 7-9-1981 have been cleared and the subsequent accountal of 12 MTs. on 11-9-1981 is a fresh production. No discussions are available on this aspect. The appellants have explained that only after stitching of the bags, they used to account for in RG 1 and hence after stitching the bags, they have accounted for 12 MTs. on 11-9-1981. This explanation has to be accepted in the absence of any evidence to the contrary. Moreover, this is a solitary case and not a series of wrong entries in RG 1 and the possibility of error in production report of the quantity nor bagged & stitched cannot be ruled out. In any case, benefit of doubt is required to be given. I, therefore, allow the appeal.