Custom, Excise & Service Tax Tribunal
M/S Ramji Board & Paper Mills Pvt.Ltd vs Commissioner, Central Excise & Service ... on 19 March, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/416-418/2007-DB [Arising out of OIO No.01/MP/DAMAN/2007, dt.31.01.2007, passed by Commissioner of Central Excise & Service Tax, Vapi] 1. M/s Ramji Board & Paper Mills Pvt.Ltd. 2. Shri Suraj P. Garg, 3. Shri Lalit P. Garg Appellants Vs Commissioner, Central Excise & Service Tax, Daman Respondent
Represented by:
For Appellant: Shri Paritosh Gupta, Advocate
For Respondent: Shri Alok Srivastava, Dy.Commr.
(Authorised Representative)
For approval and signature:
Honble Mr. P.K. Das, Member (Judicial)
Honble Mr. H.K. Thakur, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL)
HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL)
Date of Hearing/Decision:19.03.2015
Order No.A/10256-10258/2015, dt.19.03.2015
Per: P.K. Das
1. These appeals are arising out of a common order and therefore, all are taken up together for disposal.
2. The relevant facts of the case, in brief, are that the Appellant No.1 M/S Ramji Board & Paper Mills P. Ltd was engaged in the manufacture of MG Kraft Papers, classifiable under Chapter 40 of the Schedule to the Central Excise Tariff Act, 1985 and holding Central Registration Certificate. They were availing the benefit of exemption Notification No.6/2000-CE, dt.01.03.2000. On 24.01.2001, the Central Excise Officers from DGCEI visited the Appellants factory and carried out search and examined the records. It was found that another unit in the name and style of M/S Ramji Packaging P. Ltd was also engaged in the manufacture of MG Kraft Papers in the same compound.
3. A Show Cause Notice dt.06.08.2002 was issued, proposing demand of duty alongwith interest and penalty to the Appellant on the ground that the Appellant availed exemption benefit wrongly and clandestinely cleared the goods under the invoices of M/S Ramji Packaging P. Ltd. It has also proposed imposition of penalty on Shri Suraj P. Garg, Director of M/S Ramji Board & Paper Mills P. Ltd and M/S Ramji Packaging P. Ltd, Shri Lalit P, Garg of M/S Ramji Board & Paper Mills P. Ltd and Authorised Signatory of M/S Ramji Packaging P. Ltd. By the impugned order, the Commissioner of Central Excise confirmed the demand of duty of Rs.65,50,552.00 alongwith interest on the Appellant No.1 on 3043.891 MT of MG Kraft Papers manufactured and cleared under the invoice of M/S Ramji Packaging P. Ltd during the period from October 2000 to January 2001. It has also imposed penalty of equal amount of duty on the Appellant No.1. Further, the penalties of Rs.10 lakhs and Rs.5 lakhs were imposed on Appellants No.2 & 3 respectively.
4. The main contention of the learned Advocate on behalf of the Appellants is that the demand was raised on the basis of the electricity consumption. He submits that it is clearly evident from record that the electricity consumption is in respect of M/S Ramji Packaging P. Ltd and has no connection with the Appellant No.1. He further submits that there is clear evidence that M/S Ramji Packaging P. Ltd had paid the amount for electricity consumption for the production of the goods to their unit. It is submitted that certain materials were found in their premises during the investigation, cannot be the basis that the entire production was made by M/S Ramji Board & Paper Mills P. Ltd. He submits that the Tribunal in the series of decisions held that the demand cannot be raised merely on the basis of electricity consumption.
5. On the other hand, the learned Authorised Representative for the Revenue submits that this is a second round of litigation. It is submitted that the Tribunal by Final Order dt.27.01.2004 directed the Adjudicating authority for allowing cross examination. He submits that during cross examination, no new materials were emerged and therefore, the Adjudicating authority rightly followed the findings of the earlier Adjudication order which is a part of the present proceedings. He also submits that the Appellants had not refuted the material available at the time of the visit of the factory by the Central Excise officers.
6. After hearing both the sides and on perusal of the records, we find that on earlier occasion, the Tribunal by Final Order No.A/83-87/WZB/2004/C-II, dt.27.01.2004 and No.A/238-240/WZB/2004-C-II, dt.10.05.2004, remanded the matter to the Adjudicating authority with direction that the Appellant may be offered the opportunity of cross examination and the matter may be re-adjudicated. Thereafter, a speaking after may be passed by him.
7. On perusal of the impugned order, we find that the Adjudicating authority allowed the cross examination to the Appellant. The Adjudicating authority observed that there is a clear evidence that the Appellant had in a very systematic way adjusted the books of account to mislead the Department to show that they were manufacturing the goods in both the units, but the evidences on record clearly prove that they have manufactured the goods during the material period in M/S Ramji Board & Paper Mills P. Ltd only.
8. Learned Authorised Representative for the Revenue drew the attention of the Bench to the relevant portion of the impugned order that the officers who visited the factory premises of the Appellant No.1 had detected several materials in the nature of finished goods in the premises of M/S Ramji Board & Paper Mills P. Ltd. We find that the Adjudicating authority had not considered the submissions of the Appellants that during the material period, the Appellants Plants & Machineries were under repair and they permitted the other unit to use electricity, who had also paid electricity bills. The learned Advocate submitted that they placed various evidences, which were not examined by the lower authorities. It is also noted that the Adjudicating authority had merely reproduced the findings of the earlier Order-in-Original.
9. In our considered view, there is no clear finding of the Adjudicating authority on appreciation of evidences in respect of demand of duty. It is also observed that the Tribunal remanded the matter to the Adjudicating authority to re-adjudicate the matter. He cannot proceed on the basis of earlier Order-in-Original.
10. In view of the above discussion, we set aside the impugned order. The matter is remanded to the Adjudicating authority to decide afresh after considering the relevant materials and the submissions of the Appellant in detail. Needless to say that the Adjudicating authority shall give proper opportunity of hearing before decision. All the appeals are allowed by way of remand.
(Dictated & Pronounced in Court)
(H.K. Thakur) (P.K. Das)
Member (Technical) Member (Judicial)
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