- (1.) In the writ application the petitioners - the petitioner No. 1 being a private limited company carrying on business as a manufacturer of excisable goods and the petitioner No. 2 one of its directors - have challenged the order dated 11th December, 2006 passed by the Commissioner of Central Excise Bolpur Commissionerate under the Central Excise Act, 1944 confirming a demand of Rs. 69,50,934/- against the petitioner No. 1 under section 11A of the Central Excise Act, 1944 (for short 'the Act') and against the imposition of penalty of an equal sum under Rule 173Q of the Central Excise Rules, 1944 and Rule 25(1)(a) read with section 11AC of the Act on several grounds.
(2.) Learned Advocate appearing on behalf of the excise authorities relying on the judgment of the Apex Court in Chanan Singh & Sons vs. Collector of Central Excise & Ors., reported in 1999(9) SCC 17 submitted since order passed by the Commissioner of Central Excise is an appealable order under section 35B of the Act, the writ petition is not maintainable. Moreover, as the petitioners were supplied with the documents sought for, the basis of calculation was disclosed and sufficient opportunity was given to present their case and as the issues are dependent on facts found on the basis of intelligence reports prepared by the anti-evasion officers, the writ petition does not come within the exceptions as propounded by the Apex Court.
(3.) Learned senior Advocate appearing on behalf of the petitioner submitted that the demand is for the period from 17th July, 2000 till 6th June, 2001. The Commissioner while passing the order had relied on the balance sheet prepared upto 31st March, 2001 which is the sole evidence. Even assuming that the basis of the demand till 31st March, 2001 is just and proper, the demand for the months of April to June, 2001 exceeds evidence and, hence, perverse. It appears that authorities relied on the purchase value and not on the consumption and though no impropriety was found in the RT 12 forms submitted from time to time, yet section 11A of the Act was invoked to confer jurisdiction on the alleged ground that the petitioner No. 1 had tried to conceal production and clearance of goods. In support of his submission reliance was placed on the judgment of the Supreme Court in Appropriate Authority vs. Sudha Patil, reported in AIR 1999 SC 181.;