Venkatabalaji Steel Rolling Mills Pvt. ... vs Commissioner Of Central Excise, ...

[Arising out of Order-In-Appeal No. 76/2013 dated 25/10/2013 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad-III ]

For approval and signature:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 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

Venkatabalaji Steel Rolling Mills Pvt. Ltd. 21-2-631, Urdugalli, Pathargatti Hyderabad  500 002 Andhra Pradesh Appellant(s)

Versus Commissioner of Central Excise, Customs And Service Tax Hyderabad-III Opp: LB Stadium Road, Basheerbagh, Hyderabad - 500 004 Andhra Pradesh Respondent(s)

Appearance:

Mr. B.V. Kumar, Advocate 103, 17 'C' Main Road, 5th Block, Koramangala, Bangalore - 560 095 For the Appellant

Mr. Mohd Yusuf, AR For the Respondent

Date of Hearing: 13/02/2015 Date of Decision: 13/02/2015 CORAM:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 20319 / 2015

Per: ARCHANA WADHWA

After condoning the delay of 28 days in filing the present appeal I proceed to decide the stay petition as also the appeal.

2. After hearing both the sides I find that the appellant is engaged in the manufacture of MS Ingots, TMT Bars etc. On 17.09.2011, when the appellants factory was visited by the preventive staff, a truck was found parked in front of the main gate of the factory and loaded with the goods, for which no excise invoice was issued by the appellant. The same was accordingly seized by the officers and verification of the stock lying in the appellants factory was conducted. As a result unaccounted goods totally valued at Rs. 14,50,220/- (Rupees Fourteen Lakhs Fifty Thousand Two Hundred and Twenty only) was found, which was seized by the officers on a reasonable belief that the same were meant for clandestine removal.

3. On the above basis proceedings were initiated against them for confirmation of demand of duty in respect of the goods loaded in the truck as also for confiscation of the same as well as confiscation of the unaccounted goods found in the factory as also for confiscation of the truck. The notice also proposed imposition of penalty. The said show-cause notice culminated into an order passed by the original adjudicating authority confirming the demand of duty of Rs. 27,705/- (Rupees Twenty Seven Thousand Seven Hundred and Five only), confiscating the goods seized from the truck with an option to the appellant to redeem the same on payment of redemption fine of Rs. 1,00,000/- (Rupees One Lakh only). In addition the unaccounted goods seized from the factory were also confiscated with an option to pay redemption fine of Rs. 1,00,000/- (Rupees One Lakh only). Further penalty of Rs. 1,79,250/- (Rupees One Lakh Seventy Nine Thousand Two Hundred and Fifty only) was imposed in terms of Rule 25 of Central Excise Rules, 2002.

4. On appeal, Commissioner (Appeals) upheld the confirmation of demand of duty but reduced the redemption fine, in respect of goods confiscated from the truck from Rs. 1,00,000/- (Rupees One Lakh only) to Rs. 50,000/- (Rupees Fifty Thousand only) and also reduced penalty to Rs. 50,000/- (Rupees Fifty Thousand only). However in respect of unaccounted goods he upheld the redemption fine of Rs. 1,00,000/- (Rupees One Lakh only). Hence the present appeal by the appellant.

5. Learned advocate Mr. B.V. Kumar appearing for the appellant is not disputing the factual position as also the redemption fine in respect of goods loaded in the truck or imposition of penalty on the said count. His only grievance is that the lower authorities should not have confiscated the goods found from the factory premises inasmuch as there was no evidence to show that the same were not entered in the records with any malafide intention to remove the same without payment of duty. In the absence of any such evidence, he prays for setting aside the confiscation and in the alternative for reducing the redemption fine.

6. Countering the argument learned DR submits that the appellant has been caught red-handed by trying to remove a part of the unaccounted goods inasmuch as the Revenue officers have found the truck loaded with the goods, outside the factory premises, in a ready to move condition, in respect of which no excise invoice was issued. This fact has not been challenged by the assessee. Accordingly he submits that it has to be held that the unaccounted portion lying in the factory was meant to be removed in a similar manner, in which case the confiscation of the same is to be upheld along with upholding the imposition of penalty.

7. I have appreciated the submissions made by both the sides. Only that part of the impugned orders which relates to confiscation of the unaccounted goods found in the factory premises, is under challenge, in the present appeal. The facts are not being disputed by the appellant, which clearly revealed that they were in the process of removing unaccounted goods found loaded in truck parked outside the factory premises. This fact, by itself, is sufficient to reflect upon the appellants malafide and leads to inevitable conclusion that the stock found in the factory premises and not entered into statutory records was meant for clandestine removal only. Otherwise also, the appellants have not able to give any plausible explanation for not entering the goods in the statutory records. As such I fully agree with the lower authorities that such unaccounted stock is to be confiscated and the appellants are liable to imposition of penalty.

8. As regards the quantum of redemption fine, I find that the value of such confiscated goods is around Rs. 15 Lakhs (Rupees Fifteen Lakhs approximately) and duty invovled therein would be more than Rs. 1,00,000/- (Rupees One Lakh approximately). As such I find no justifiable reasons to even reduce the redemption fine of Rs. 1,00,000/- (Rupees One Lakh only) on the penalty amount.

9. In view of the foregoing I find no reasons to interfere in the impugned orders of the authorities below. Accordingly the stay petition as also the appeal gets rejected. COD, stay petition and appeal are disposed of in the above manner.

(Order pronounced in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

iss