M/S. Star Pac India Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No.29/2007 (M-IV), dated 29.03.2007 passed by the Commissioner of Central Excise
Ratio decidendi
The rule this decision rests on
The reasoning rests on two principles. First, where the dispute turns on whether particular goods are scrap, the party asserting that the goods are scrap bears the burden of proving it; absent evidence establishing that the goods were scrap, a finding that they are not scrap may be sustained. Second, where the duty already paid on goods is shown to relate to the same transactions, that amount is to be adjusted against the confirmed demand, with only the balance recoverable together with interest. On penalty, a penalty is not imposable where the record discloses no deliberate intention or fraudulent act on the part of the assessee.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.29/2007 (M-IV), dated 29.03.2007 passed by the Commissioner of Central Excise (Appeals), Chennai]
M/s. STAR PAC INDIA LTD. APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-IV RESPONDENT
Appearance:
For the Appellant Ms. Kamna, Adv. (for M/s. Chakravarthy Associates) [No vakalat on file]
For the Respondent Shri L. PANEERSELVAN, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 08-07-2015
FINAL ORDER NO. 40758 / 2015
While Revenue says that certain goods listed in S.Nos. 1 to 9 of the table at pages 2 and 3 of the Adjudication order were the goods not returned by job worker to the appellant-manufacturer. Appellant says those were the scraps for which that did not reach the manufacturer but were sold and duty of Rs.58,268/- thereon was paid.
2. When the controversy is in limited compass as above, the evidence from the record was looked into. There was no evidence to prove that the goods listed as above, which are as under were not scrap:- (i) Polyester Films (ii) Met. Polyeester Films (iii) W/o Polyester Films (iv) TR. Polyester Films (v) Pearlized Bopp (vi) Met Bopp (vii) TR Bopp (viii) W/O Bopp and (ix) Polycoated Paper, were really scrap but not the goods. In absence of any evidence, it is very difficult to agree with the assessee that the goods above were scrap.
3. In view of the above finding, the duty, if any, already paid shall be adjusted against the ultimate (Cenvat credit) demand of Rs.2,95,907/- and the balance realised with interest.
4. So far as the penalty is concerned, there does not appear any deliberate intention of fraudulent act of the appellant. Therefore, there shall not be penalty.
5. Appeal is party allowed to the extent indicated above. (Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 09-07-2015
DRAFT Remarks
I II III
Date of dictation 08.07.2015
Draft Order - Date of typing
Fair Order Typing 09.07.2015
Date of number and date of dispatch 13.07.2015
2 E/00465/2007
Connected matters
Decided by the same order
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