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Judgment
Re : GA 825 of 2018
The Court: Sufficient cause is shown. The delay in preferring the appeal is condoned. Let this appeal be registered by the department forthwith. The
application (GA 825 of 2018) is allowed.
Re: GA 826 of 2018, CEXA 55 of 2018:
This is an intended appeal under Section 35G of the Central Excise Act, 1944. It arises from the order of the Customs, Excise and Service Tax
Appellate Tribunal (CESTAT) dated 14th September, 2017. The question involved in this appeal is the interpretation of Rule 10 of the Central Excise
Rules 2002 read with the letter of the Board dated 9th November, 1964. Mr. P. K. Das appearing for the appellant submits that in accordance with
the ratio of the Supreme Court in the case of Collector of Customs And C. E. Versus Oriental Timber Industries reported in 1985, Volume 20, ELT
Page 202(SC) and the said Rule 10, the stock of unlabelled and unstamped plywood manufactured by the appellant was entered in their Daily Stock
Account R.G. â€
The demand of duty of Rs. 2, 45, 850.09/- along with interest and penalty of Rs. 4, 00, 292.00/- has been wrongly imposed on the appellant by the
respondent authority by rejecting their argument that this stock of unlabelled and unstamped plywood was to be entered in the Daily Stock Account
and accounted for.
Mr. Das said that according to the respondent such entry should be ignored and was ignored by them. Learned counsel appearing for the respondent
Commissioner submitted that at all stages of the proceeding, the adjudicating bodies have come to the conclusion that the appellant was guilty of
clandestine removal of the goods for the purpose of evasion of duty. On a bare perusal of the records of this case, we find that there was a stock of
unlabelled and unstamped plywood manufactured by the appellant. The stock may not have been very large but it is an admitted position that it was
not taken into account at the time of calculation of the demand, by the respondent.
In those circumstances, a mixed question of facts and law arise from the said impugned order of the Tribunal. In our opinion, a thorough adjudication
on facts is required to ascertain whether there was any quantity of unlabelled and unstamped plywood? Whether the appellant had entered this stock
in the Daily Stock Account R. G. â€" 1 according to Rule 10 of the said Rules? What is the amount of duty that is to be adjusted against this stock of
goods and in that event what would be the ultimate demand of the respondent ?
This Court is of the view that these questions of fact and law can be best answered by the tribunal or the adjudicating authorities below. In those
circumstances, we formally admit the appeal. By consent of the parties, we have heard it out dispensing with all formalities. Instead of hearing out this
appeal on questions of law, it would be proper if the above issues are remanded back to the Tribunal for de novo adjudication upon hearing the parties
within four months from the date of communication of this order.
We order accordingly. The Tribunal will be at liberty to further remand the matter to a lower over adjudicating authority for fact finding purposes. The
Tribunal will not be bound by any observation made herein. As affidavits were not invited, the allegation contained in the stay petition are deemed not
to be admitted. The appeal (CEXA No. 55 of 2018) along with the stay application (GA No. 826 of 2018) are disposed of.