Custom, Excise & Service Tax Tribunal
Godavari Fertilisers & Chemicals Ltd. ... vs Cce&C, Visakhapatnam-Ii on 15 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/1078/2009-SM [Arising out of Order-in-Appeal No.60/2009 dated 31/08/2009 passed by CCE, ST & C(Appeals), Visakhapatnam] For approval and signature: HON'BLE SMT. 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? 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 Godavari Fertilisers & Chemicals Ltd. (Presently known as Coromandel International Ltd.)., Beach Road, Kakinada 533 003. Andhra Pradesh. Appellant(s) Versus CCE&C, Visakhapatnam-II Respondent(s)
Appearance:
Shri Cherian Punnoose, Advocate For the Appellant Shri N. Jagdish, Superintendent(AR) For the Respondent Date of Hearing: 26/06/2015 Date of Decision: . CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. / 2015 Per : ARCHANA WADHWA The appellants are engaged in the manufacture of fertilizers falling under Chapter 31 of the First Schedule to the Central Excise Tariff Act, 1985. As per the appellant, prior to the manufacture of fertilizers, they were manufacturing various pesticides, the manufacture of which was stopped in the month of October 1999 itself.
2. As per the appellants, they used to receive back some of the cleared pesticides from their depots and the same were being stored separately. As the appellant had stopped production of pesticides, the said pesticides were not being produced by them. However subsequently in the month of November 2004, they could find a customer and the said pesticides were sold by them at throwaway price, without payment of duty.
3. During the audit conducted in the appellants plant in September 2005, the clearances of the said pesticides without payment of duty was noticed. Accordingly proceedings were initiated against them for confirmation of demand of duty to the extent of Rs.9,68,472/-. The same was deposited by the appellant through their CENVAT credit account under protest.
4. During the course of adjudication appellant took a stand that the said pesticides cleared in November 2004 were the stock of the pesticides which was originally cleared on payment of duty and subsequently returned to their factory. However as the appellant could not correlate the clearances and the return of the said goods with any documentary proof, the adjudicating authority did not accept the above contention of the appellant and confirmed the demand along with imposition of penalty. On appeal, Commissioner(Appeals) observed that there is no evidence produced by the assessee to support their above contention and accordingly rejected the appeal.
5. Learned advocate appearing for the appellant reiterated the same stand that this clearance of pesticides in November 2004 was second time clearance inasmuch as the said pesticides were originally cleared on payment of duty and were subsequently received back by the appellants from their depots. On being questioned as to whether there is any documentary proof to substantiate the above contention of the appellant, learned advocate fairly agreed that there is no document.
6. After hearing the learned AR and on going through the impugned orders, I find that except for making a bald statement that the said clearances were out of the old returned stock of pesticides, the appellants have not been able to correlate the returned goods with the earlier duty paid clearances. There is a specific procedure required to be followed by the manufacturing units in case the duty paid cleared goods are subsequently returned to their factory. No such records stand maintained by the appellant. In such a scenario, it is difficult to accept the stand taken by the assessee. It is not a case of technical lapse or procedural irregularity. The appellants are required to substantiate their claim that the goods were originally cleared during the preceding period and were subsequently brought back to their factory and are cleared in the month of November 2004. In the absence of any evidence to that effect, I find no infirmity in the view taken by the authorities below. Accordingly appeal is rejected as being devoid of merits.
(Order pronounced on .) ARCHANA WADHWA JUDICIAL MEMBER Raja..
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