M/S. Abhinav Steels And Power Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 10/CE/Alld/2013 dated 24/06/2013 passed by Commissioner of Central Excise (Appeals), Allahabad ]

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?

M/s. Abhinav Steels and Power Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, Allahabad

Appearance:

Shri Bipin Garg, Ms Rinki Arora, Advocates for the Appellants

Shri R K Mishra, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 03.2.2015

FINAL ORDER NO. A/ 50385 /2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein duty demand has been confirmed on the allegation of clandestine removal of captively consumed goods.

2. The brief facts of the case are that on 9.8.11, a search was conducted in the premise of appellant. The stock was physically verified. It was found that MS ingots which were captively used by the appellant were found to 128.200 MT instead of 270.350 MT entered in their books. Therefore the charges were framed against the appellant that they have cleared 142.150 MT Ms ingots without payment of duty clandestinely. A show cause notice was issued to demand duty along with interest and for imposition of penalty. In adjudication demand along with interest was confirmed. Penalty was also imposed. Learned Commissioner (Appeals) also confirmed the adjudication order. Therefore, appellant is before me.

3. Shri Bipin Garg, learned advocate appeared on behalf of the appellant and submits that during the course of search except MS ingots all other materials were found intact as per the books of accounts on physical verification and the person whose statement was recorded during the course of investigation could not explain the reasons for shortage, Therefore the charge has been made against the appellant that goods have been clandestinely cleared. He submits that as these MS ingots were used by them for conversion into MS bars and being used captively. These MS ingots were taken to the place where these were converted into bars and rods. As per notification No. 67/95, the goods captively consumed are exempt on payment of duty. Therefore they were not weighing these MS ingots cleared for conversion. These explanation has not been considered by both the lower authorities. But confirmed the demand on the allegation of clandestine removal of the goods without any corroborative evidence. In these circumstances, demand is not sustainable as held by this Tribunal in the case of Kakkar Complex Steels P Ltd. vs. CCE, Ludhiana [2013 (290) ELT 103 (Tri-Del)], and Galaxy Textiles vs. CCE, Vapi [ 2011 (263) ELT 604 (Tri- Ahmd)].

4. On the other hand, learned AR reiterated the finding of the impugned order.

5. Heard the parties. Considered the submissions.

6. In this case, the shortage of MS ingots were found but no corroborative evidence have been brought on record by the Revenue to prove the charge of clandestine removal of the goods. There is no statement of appellant confirming MS ingots were removed clandestinely without payment of duty. Therefore, relying on the decision of Tribunal in the case of Kakkar Complex Steels P Ltd. (supra) and Galaxy Textiles (supra) , I hold that charge of clandestine removal remains unproved. In these circumstances, demands are not sustainable. Impugned order is set aside. Appeal is allowed with consequential relief, if any.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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