M/S. Patton International Ltd vs Commr. Of Central Excise-Kolkata-Vii

(Arising out of the Order-in-Appeal No. 28/Kol-VII/2011 dated-11/02/2011 passed by the Commissioner of Central Excise (Appeals-I),Kolkata)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER

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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. Patton International Ltd. APPELLANT(S) VERSUS Commr. of Central Excise-Kolkata-VII RESPONDENT(S)

APPEARANCE

Sri A. Baheti, C.A. FOR APPELLANT(S) Shri A. K. Biswas, Supdt. (A.R.)

FOR THE RESPONDENT(S)

CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER

DATE OF HEARING & DECISION : 29/04/2015

ORDER NO : FO/A/75240/15 Per DR.D.M. MISRA

This is an appeal filed against Order-in-Appeal No.28/Kol-VII/2011 dated-11/02/2011.

2. Briefly stated facts of the case are that during the course of audit, it was noticed by the Department that there was difference in the sales figures of manufactured items viz. Plastic Tanks, Skips (Big), Plastic Pellets to the extent of 400 pcs., 18 pcs., and 426 pcs., respectively. Consequently, the demand notice was issued to the appellant alleging removal of the said goods without payment of duty to the extent of Rs.3,50,130/-. On adjudication, the demand has been confirmed. Aggrieved by the said order, the assesse preferred an appeal before the Ld. Commissioner (Appeals) who has rejected their appeal. Hence the present appeal.

3. At the outset, the Ld. Chartered Accountant Shri Arvind Baheti for the applicant submits that the Ld. Commr. (Appeals) has proceeded to decide the appeal without considering the balance sheet on the ground that the same was not produced before him. He submits that the entire demand notice has been issued to them on the basis of sales figures reflected in the Balance Sheet vis-`-vis sales/clearances mentioned in the respective ER-1 Returns. It is his submission before the Ld. Commissioner (Appeals) that even though they have not specifically produced the Balance Sheet, however, they have challenged the observation of the adjudicating authority on the alleged sales figures by producing work sheets, duly certified by Chartered Accountant. He has submitted that re-conciliation statement submitted by them alongwith Chartered Accountant Certificate were not considered by the Ld. Commr. (Appeals) while rejecting their appeal.

4. Ld. .A.R. for the Revenue reiterated the findings of the Ld. Commr. (Appeals). He submits that in absence of production of the Balance Sheet, the Ld. Commissioner(Appeals) arrived at the conclusion on the removal of goods without payment of duty on the basis of available records as all the evidences were not produced before him. Further, he has submitted that the Chartered Accountants certificate was not produced before the Ld. Adjudicating Authority and another one was produced for the first time before the Ld. Commissioner (Appeals). He has no objection in remanding the case to the original adjudicating authority, as these certificates/evidences need scrutiny/verification.

5. Heard both sides and perused the records. I find that the entire dispute relates to reconciliation of of sales value/figures between the balance sheet and the monthly ER-1 returns filed during the relevant period by the appellant. It is the appellants claim that due to non-appreciation of relevant evidences, submitted by them reconciling the differences, the demand has been confirmed and later upheld by the Ld. Commissioner(Appeals). It is their claim that the differences in sales value between the Balance Sheet and the ER-1 Returns were not due to removal of the goods but due to the reprocessing of defect materials(D-3 materials) which were later cleared on payment of duty; it resulted apparent difference in the sales value but not in quantity. However, during the course of hearing, the Ld. Chartered Accountant has fairly accepted that the relevant Chartered Accountants certificate, certifying the re-conciliation carried out by them were not produced before the original authority. Both sides agreed that the certificates and the clearances of D-3 materials are to be verified alongwith the necessary delivery challans. In the interest of justice, and to end further litigation, in my opinion, it is prudent to remand the case to the original authority for deciding the said issue afresh on the basis of evidences on record and that would be produced by the appellant before him. In the result, the impugned Order is set aside and the matter is remitted to the original adjudicating authority. Needless to mention a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. The appeal is allowed by way of remand.

(Dictated and pronounced in the open court)

(D.M.MISRA) MEMBER (JUDICIAL) k.b/-

Excise Appeal No. E/337/2011

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