Judgment:
1. None has come present on behalf of the respondents. Notice was issued to them for today's hearing on 3-12-2003, but no response has been received from them. No request for adjournment has also been received. Therefore, I proceed to dispose of the appeal after hearing the learned SDR.2. In this appeal, the Revenue has made challenge to the impugned order-in-appeal vide which the Commissioner (Appeals) has reversed the order-in-original confirming the duty demand of Rs. 62,454/- and imposing a penalty of Rs. 10,000/- on the respondents for having clandestinely manufactured and cleared the goods without payment of duty. The learned SDR has contended that the alleged agreement dated 11-7-97 propounded by the respondents in their defence could not be accepted by the Commissioner (Appeals) as its existence was never disclosed to the Central Excise officers at the time of their visit to the factory of the respondents. Similarly, the invoice dated 20-10-98 produced by the respondents could not be attached any legal value by the Commissioner (Appeals) as the goods in question were manufactured and found lying in their factory premises and used captively by them in their factory much prior to that. Therefore, the impugned order of the Commissioner (Appeals) deserves to be set aside.
3. I have gone through the record and in my view the contention of the learned SDR deserves to be accepted. The perusal of the file shows that the respondents are engaged in the manufacture of Raney Nickel catalyst falling under Chapter Heading 3815.00 of the CETA. During the surprise visit to the factory premises of the respondents by the Central Excise officers, it revealed that they manufactured/fabricated MS storage tanks and FRP in their factory and wrongly claimed exemption in respect thereof under Notification 67/95, dated 16-3-95 as the products MS storage tanks are classifiable under Heading 73.09 and goods of that Chapter Heading stand excluded from the definition of the 'capital goods' under Rule 57Q of the Central Excise Rules.
4. The plea of the respondents that they got manufactured these goods from M/s. Vishwakarma Engineering Works has been wrongly accepted by the learned Commissioner (Appeals). The agreement dated 11-7-97 between them and the said firm, M/s. Vishwakarma Engineering Works, was never produced by them at the time of visit to their factory by the officers.
They produced this agreement for the first time after a gap of 11 months from the date of checking of their factory premises. The invoice produced by them to show that on this basis they got the goods manufactured on job work basis from M/s. Vishwakarma Engineering Works, is dated 20-10-98, whereas the visit by the Central Excise officers to their factory was on 9-9-98 and they were found using these goods captively in their factory. This circumstance itself is enough to belie the version of the respondents that they got the goods manufactured on job work basis from that firm. Similarly, non-production of alleged agreement referred above, by them, before the officers at the time of visit to their factory and its production after 11 months thereafter also goes a long way to show that they had fabricated this piece of evidence to cover up their guilt of having evaded payment of duty. The Commissioner (Appeals) has wrongly placed reliance on both these documents and set aside the duty demand and penalty confirmed against the respondents by the adjudicating authority and as such, the impugned order passed by him cannot be legally sustained.
5. In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside. The appeal of the Revenue is allowed.