M/S Perfect Carbouys Pvt Ltd vs Commissioners Of Central Excise
- CitationAppeal No. : E/550/2011
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on the following: where a show cause notice's Annexure C invoices duplicate invoices already covered by Annexure A on which duty was confirmed, the duplicated demand cannot stand twice, and the adjudicating authority must reconcile the two annexures. Where the appellant has not been shown to have sold goods under the remaining invoices, and the adjudicating authority's findings on them rest on documents collected from the appellant without the appellant having had an opportunity to produce its own evidence, the appellant must be given that opportunity before duty on those invoices is determined, and the matter is remitted to the adjudicating authority to re-examine Annexures A and C and the evidence on the six invoices in accordance with law, after affording a hearing.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIA-SKSS/04/VAPI/2011 dtd 20.1.2011 passed by Commissioners of Central Excise, Customs and Service Tax-VAPI ]
M/s Perfect Carbouys Pvt Ltd - Appellant(s)
Vs
Commissioners of Central Excise, Customs and Service Tax-VAPI - Respondent (s)
Represented by :
For Assessee : Shri Mukund Chouhan, Advocate For Revenue : Shri G P Thomas, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial)
Date of Hearing / Decision : 15/5/2015
ORDER No. A/10963 / 2015 dtd 15/5/2015
Per : Mr.P.K. Das,
Heard both the sides and perused the records.
2. The appellants were engaged in the manufacture of Plastic Drums and Plastic Carbouys. On 26.6.2008, the Central Excise Officers visited the appellants factory and detected shortage of finished goods. The Adjudicating Authority confirmed the demand of duty alongwith interest and imposed penalty. The Commissioner (Appeals) upheld the Adjudication Order.
3. The Learned Counsel on behalf of the appellant restricted his submissions in respect of the demand of duty on the basis of Annexure C to the show cause notice. It is submitted that the 10 invoices as mentioned in the Annexure C has already been covered in the Annexure A to the show cause notice where demand was confirmed. He further submits that the demand duty in respect of goods of other 6 invoices, were not sold by them and not considered by the lower authorities.
4. On the other hand, the Learned Authorized Representative for the Revenue submits that the appellant had not taken this issue before the lower authorities. It is submitted that the Commissioner (Appeals) had given detailed finding on the confirmation of demand in respect of the 6 invoices as mentioned in the Annexure C.
5. I find that the 10 invoices as mentioned in the Annexure C were also mentioned in the Annexure A to the show cause notice. It is noticed that the Commissioner (Appeals) rejected the submission of the appellant in respect of the 6 invoices on the basis of certain documents collected from the appellant. In any event, the appellant should be given an opportunity to produce the evidence in respect of the 6 invoices. The Adjudicating Authority is required to re-examine the Annexure C with Annexure A as contended by the learned counsel.
6. In view of the above discussions, the Adjudicating Authority is directed to examine the Annexure A and C of the show cause notice and the evidences in respect of the 6 invoices as mentioned above, in accordance with law. Needles to say that the Adjudicating Authority shall give proper opportunity of hearing to the appellant before passing order. The appeal is disposed of in the above terms.
(Dictated and pronounced in the Court)
(P.K. Das) Member (Judicial)
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