Commissioner Of Central Excise vs Shri Consultants Pvt. Ltd

[Arising out of Order-In-Appeal No. 154-155/RPR-I/2013 dated 10/06/2013 passed by Commissioner of Customs & Central Excise & Service Tax, Raipur (CG)]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Commissioner of Central Excise Appellants

& ST, Raipur

Vs.

Shri Consultants Pvt. Ltd. Respondent

Appearance:

Shri G R Singh, AR for the Appellants

Ms Rinki Arora, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 03.2.2015

FINAL ORDER NOS. A/ 50387 /2015-Ex(SM)

Per Ashok Jindal :

The Revenue is in appeal against the impugned order wherein the demand against the respondents have been dropped by the learned Commissioner (Appeals), holding that the excess stock found at the time of physical verification is on the basis of estimation and Revenue has failed to produce any corroborative evidence for alleging that the respondents have removed the goods clandestinely.

2. The facts of the case are that the respondents are manufacturer of MS ingots. During the course of investigation on 20.12.2010, the stock of finished goods was found in excess of 92.736 MT. Therefore, it was alleged that as these goods are made by the respondents to be cleared clandestinely, without payment of duty, therefore the goods were seized. Later on, confiscated and allowed to be redeemed on payment of redemption fine of Rs.6 lakh. Duty was also demanded and penalty was imposed. On appeal before the Commissioner (Appeals), the adjudication order was set aside on the ground that verification of the stock was done on estimation basis and Revenue failed to produce any corroborative evidence to allege that excess goods were manufactured by appellant and cleared clandestinely. Aggrieved from the said order, Revenue is before me.

3. Learned AR submits that in this case, the excess stock found in the factory of the appellant has not been explained by the respondents and the said goods were not recorded in the statutory records. Therefore, these goods were unaccounted goods which were said to be cleared clandestinely. He further submits that the weighment of MS ingots were done on the basis of formula taken at that time. Therefore weighment was done correctly. Learned AR relied on the decision of Genus Paper Products Ltd. vs. CCE, Meerut [ 2014-TIOL-1245-CESTAT-DEL] and Nitin Ispat (P) Ltd. vs. CCE, Lucknow [ 2014 (306) ELT 483 (Tri-Del)]. In these circumstances, impugned order is required to be set aside.

4. On the other hand, learned Counsel for the appellant submits that in this case, the learned Commissioner (Appeals) has considered the production of the respondent and if that production is taken into account, there will be no excess stock found at the time of investigation. Therefore, Commissioner (Appeals) has rightly held that Revenue has failed to produce any corroborative evidence to allege that goods are meant for removal of goods clandestinely, therefore, impugned order is to be upheld.

5. Heard the parties.

6. Sole ground taken by the Revenue to file the appeal is that weighment done at the time of investigation is correct but the learned Commissioner (Appeals) has considered the production of whole of the manufacture to determine the goods produced on 18.12.2010 and 19.12.2010 whereas at the time of investigation production of these two days was taken into consideration as 36 and 66 MT but production during the period was found by the learned Commissioner (Appeals) from the statutory records as in the range of 80.80 to 93.40 MT per day. Therefore, conclusion drawn by the revenue with regard to production on 18.12.2010 and 19.12.2010 of 36 MT and 66 MT is totally incorrect. In these circumstances, I do agree with the observations of the learned Commissioner (Appeals) in the impugned order and thereafter holding that there was no excess production was done by the appellant during that period. Further, the case law relied upon by the learned AR is not relating to the facts of this case as in that case the raw material was found in excess which was not entered in the statutory records. In this case, the allegation against the respondent is that respondent has manufactured the excess goods to clear clandestinely. Therefore the case law relied upon by the learned AR is not applicable to the facts of this case. As discussed above, if the production of two days i.e. 18.12.2010 and 19.12.2010 are taken into consideration as per previous days production, in that way, there is no excess production made by the appellant during this time, no excess stock could be found. In these circumstances, I do not find any infirmity in the impugned order. Therefore same is upheld. Appeal filed by the Revenue is dismissed.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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