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P.K. Ravindran Vs. Commissioner of C. Ex. - Court Judgment

SooperKanoon Citation

Subject

Excise

Court

Chennai High Court

Decided On

Case Number

Writ Petition No. 16086 of 1998

Judge

Reported in

2003(156)ELT182(Mad)

Acts

Central Excise Rules, 1944 - Rules 9(2) and 173E

Appellant

P.K. Ravindran

Respondent

Commissioner of C. Ex.

Appellant Advocate

Raju, Adv.

Respondent Advocate

S. Balaji, Adv. for ;Madangopal Rao, CGSC

Disposition

Petition dismissed

Cases Referred

George Verghese v. Collector of Central Excise

Excerpt:


- .....executive engineer of the electricity board, which power consumption cannot possibly be sufficient to produce the quantity alleged to have been manufactured.3. counsel also relies on a judgment of the division bench of the kerala high court in the case of george verghese v. collector of central excise wherein, it was held that the failure to advert to proper material or relevant evidence vitiates the order of the tribunal.4. though these submissions appear superficially attractive, the facts of the case do not warrant the acceptance of those submissions. it has been found by the commissioner, as also by the tribunal that the proprietor, as also his employee had themselves admitted the fact that there had been production in excess of what had been shown in the rg 1 register. in addition, there were statements from the buyers of the goods manufactured in the petitioner's factory, which showed the receipt of quantities which had not been accounted for in the manufacturer's record. besides, there were also records to show the movement of large quantity of goods from the petitioner's factory which had not been accounted for the rg 1 records.5. the conclusion reached by the.....

Judgment:


ORDER

R. Jayasimha Babu, J.

1. Counsel contends that the order of the Tribunal, as also the order of the Commissioner which it affirmed, wherein, it was found that the real production of tread rubber has been suppressed and there has been clandestine removal during the period 1981-86, is vitiated.

2. The principal contention is that guidelines contained in Rule 173E of the Central Excise Rules have been ignored. Counsel contends that the number of employees are 4; that the power consumption is as set out in the certificate issued by the Assistant Executive Engineer of the Electricity Board, which power consumption cannot possibly be sufficient to produce the quantity alleged to have been manufactured.

3. Counsel also relies on a judgment of the Division Bench of the Kerala High Court in the case of George Verghese v. Collector of Central Excise Wherein, it was held that the failure to advert to proper material or relevant evidence vitiates the order of the Tribunal.

4. Though these submissions appear superficially attractive, the facts of the case do not warrant the acceptance of those submissions. It has been found by the Commissioner, as also by the Tribunal that the proprietor, as also his employee had themselves admitted the fact that there had been production in excess of what had been shown in the RG 1 register. In addition, there were statements from the buyers of the goods manufactured in the petitioner's factory, which showed the receipt of quantities which had not been accounted for in the manufacturer's record. Besides, there were also records to show the movement of large quantity of goods from the petitioner's factory which had not been accounted for the RG 1 records.

5. The conclusion reached by the Commissioner and affirmed by the Tribunal, therefore, was not based on any one single factor but was the result of the cumulative effect of all the factors placed before them. The fact that the electricity consumption was allegedly in a quantity less than that which would be sufficient to manufacture the total quantity removed allegedly clandestinely is not decisive. It is also a well-known fact that clandestine consumption of electricity by industries goes unmetered either on account of the misuse of the facility by the consumer, or on account of the clandestine activity of such consumer in collusion with the officials of the concerned Electricity Boards.

6. Determining the final outcome of the adjudication solely on the strength of the certificate produced by the petitioner regarding electricity consumed ignoring the other materials on record which clearly indicate the production and removal clandestinely of quantities which are not shown in the R.G register, therefore, would be wholly unsafe. Moreover, there is no statutory rule which lays down that the authorities must accept the capacity of the unit as being limited to what the permissible load, or the actual utilisation of the power in that manufacturing unit as claimed by the assessee or as certified by the Electricity Board is as determining the total quantity that can possibly be manufactured in the unit and that quantities though shown to have been manufactured in that unit by reason of other evidence should be regarded as not having been manufactured in that unit.

7. Question of fact are required to be considered and appreciated by the adjudicating authorities which has been done. Counsel contended that fair opportunity was denied to the petitioner as an adjournment which had been sought before the Commissioner on the ground that Counsel had gone to Delhi to argue a Special Leave Petition against the decision of the Kerala High Court which had vacated the interim stay had resulted in prejudice. It is the duty of Counsel to be present when the matter is set down for hearing and in the absence of any restraint on the authority to proceed with the adjudication, parties have no right to keep away, nor do Counsel has such a right when they represent those parties. Moreover, the petitioner had ample opportunity to present its case which it did before the Tribunal. The Tribunal has considered the case on merits and has not found any of the contentions put forth before it by the petitioner to be worthy of acceptance.

8. I therefore do not see any infirmity in the order of the Tribunal calling for interference in exercise of this Court's jurisdiction under Article 226 of the Constitution. The writ petition is dismissed. No costs.


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