Custom, Excise & Service Tax Tribunal
Cce, Delhi-Iv vs M/S. North West Switchgear Ltd on 12 March, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT III EXCISE APPEAL NO. 945 OF 2007-SM [Arising out of Order-in-Appeal No. 114-115/CE/Appeal/DLH-IV/2006 dated 12.01.2007 passed by the Commissioner (Appeals), Central Excise, Delhi-IV, Faridabad] For approval and signature: Honble Mr. P.K. Das, Member (Judicial) 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 would 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? CCE, Delhi-IV, Faridabad Appellant Vs. M/s. North West Switchgear Ltd., Respondent
Appearance:
Shri Sansar Chand, D.R. for the Revenue/appellant; Shri R.C. Gupta, Advocate, for the appellant; Coram:
Honble Mr. P.K. Das, Member (Judicial), Date of hearing/decision: 12th March, 2009 FINAL ORDER NO._________________ dated __________ Per P.K. Das:
Revenue filed this appeal against the order-in-appeal No. 114-115/CE/Appeal/DLH-IV/2006 dated 12.01.2007 passed by the Commissioner (Appeals) whereby adjudication order was set aside.
2. The relevant facts of the case, in brief, are that the respondents are engaged in the manufacture of Switchgear of North-West brand classifiable under heading No. 85.36 of the Schedule to the Central Excise Tariff Act, 1985. The Central Excise Officers visited the respondents factory on 30.12.2003. They found some loose papers from the table of Shri P.K. Arora, Dy. General Manager of the respondent company. The said papers indicate the clearance of scrap of Plastic, Brass, M.S. and other material sold on various dates during the period from 2.8.2000 to 28.11.2003. The said officers recorded the statement of Shri P.K. Arora wherein he stated that he did not know whether any invoice was issued or not against those removal. The officers also recorded statement of Shri P.D. Agarwal, C.M.D. of the respondent company wherein he stated that scraps were sold on the basis of said loose papers but he cannot say whether central excise duty was paid on the said scrap. The respondents deposited the duty of Rs. 7 lakhs. The original authority confirmed the demand of duty of Rs. 7,42,995/- and imposed penalty of equal amount along with interest. He has also appropriated the amount of Rs. 7 lakhs as deposited by them. The Commissioner (Appeals) set aside the adjudication order.
3. Learned D.R. on behalf of the Revenue reiterates the grounds of appeal. He submits that Shri P.D. Agarwal, CMD accepted the clearance of the goods and failed to produce duty paying documents and, therefore, original authority correctly confirmed the demand of duty. He, further, submits that the representative of the assessee accepted the clearance of goods without payment of duty and, therefore, there is no need for further investigation.
4. Learned Advocate on behalf of the respondents reiterates the findings of the Commissioner (Appeals) he drew the attention of the Bench to the statement of clearance of scrap during the relevant period. He submits that the statement indicates that during the relevant period scrap was generated approximately 30%. He, further, submits that as per quantity mentioned in the show cause notice the removal of scrap would be taken into account and it will be approximately 57% to 82% generation of scrap which is absolutely impossible. On query from the Bench the learned Advocate fairly submits that this fact was not considered by the original authority.
5. I find from the order of the Commissioner (Appeals) that he has proceeded on the basis that the Central Excise Officer failed to make proper inquiry. In the facts and circumstances of the case I am unable to accept such findings. But, I find force in the submission of the learned Advocate in respect of generation of scrap from 58% to 82% as mentioned in their statement, which was not examined by the lower authorities. In my view, the matter requires to be examined on this issue also. Accordingly, impugned order is set aside. The matter is remanded back to the original authority to examine the case afresh after considering the submissions of the learned Advocate and particularly submissions placed by him before the Tribunal. The respondents are at liberty to produce any other evidence along with submissions. Appeal is allowed by way of remand.
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) RK