Custom, Excise & Service Tax Tribunal
M/S Britannia Engineering Ltd vs Commr. Of Central Excise, Kolkata Iii on 25 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex.Appeal No.341/07
Arising out of O/A No.09/Kol.III/07 dated 08.01.2007 passed by Commr. of Central Excise (Appeals), Kolkata.
M/s Britannia Engineering Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Kolkata III
RESPONDENT (S)
APPEARANCE S/Shri K. P. Dey & S. Dey, both Advocates for the Appellant (s) Shri S. Mukhopadhyay, Supdt. (A.R.) for the Revenue CORAM:
SHRI P. K. CHOUDHARY, HONBLE JUDICIAL MEMBER DATE OF HEARING : 25. 10. 2016 DATE OF PRONOUNCEMENT : 05. 12. 2016 ORDER NO.FO/A/76237/2016 Per Shri P. K. Choudhary :
M/s Britannia Engineering Ltd., the appellant herein, is a manufacturer of road rollers and tea machineries and parts thereof. During the stock verification by the Central Excise Officers on 06.05.1999, as per RG I, they recorded stock of 20 Nos. road rollers and on physical verification, 8 Nos. of road rollers were found short. Show Cause Notice was issued on 23.01.2003. The adjudicating authority appropriated the Central Excise duty of Rs.1,03,323/-, which is not disputed by the appellant. The present appeal relates to demand of duty of Rs.6,96,124/- along with interest and penalty of equal amount of duty. The Commissioner (Appeals) upheld the adjudication order.
2. The ld.Counsel appearing on behalf of the appellant, submits that the short payment of duty occurred, due to preparation of invoice on 27.02.1999 and debiting duty on that date itself but the clearance effect on the budget day i.e. on 28.02.1999,when rate of duty had been increased, paid Rs.1,03,323/- which the lower adjudicating authority appropriated in his Order-in-Original also and granted remission from payment of penalty. However, duty involved on 8 Nos. of road rollers amounting to Rs.6,96,124/- was wrongly confirmed and thereby penalty equal to confirmed duty of Rs.6,96,124/- was wrongly imposed under Section 11AC of the said Act. He further submitted that road rollers are not of common selling item bought and sold amidst people of common walk of life and any buyer of such 8 Nos. of road rollers, which ply on road having unique number allotted to it, could not be identified by the Revenue alleging clandestine removal nor could any flow of money value of such road rollers be established. He further submitted that since the accounts of the appellant were/are subjected to audit by the auditors of the Comptroller and Auditor General (CAG) of India, had there been clearance of any non-duty paid goods it would have featured in audit report. The Flow chart of Road Roller manufacturing process would lead to hold that when any defect is noticed after it attained roadworthiness or mobility i.e. RG I point, it is sent back to the workshop for remedying the defects even by causing dismantling and refitting the same which the officers of high echelon of the appellant company could not explain. The ld.Counsel further submitted that the appellant being a Public Sector Undertaking would not have any interest in taking resort to clandestine removal of goods the appellant cannot be attributed with any malafide intention to evade payment of duty nor they can be held liable to penalty. He also relied on the decision of this Tribunal in the case of M/s I. O. C. L. Vs. CCEx, Ahmedabad : 2013 (291) ELT 449 (Tri.-Ahmd.).
3. The ld.A.R. for the Revenue reiterated the findings of the lower authorities.
4. Heard both sides and perused the case records.
5. I find from the record that on 06.05.1999, during the stock verification, detected shortage of 8 Nos. of road rollers out of 20 Nos. of as recorded in the RG I Register. Shri N. N. Hazra, General Manager and Shri S.Kanjilal, Financial Controller of the appellant company in their joint voluntary statement dated 06.05.1999, admitted such shortages. The contention of the Ld.Advocate on behalf of the appellant is that the road rollers were lying in the factory premises awaiting minor work and painting. I find that the senior officials in their statement accepted the shortage of 8 Nos. of road rollers. Neither there is any cogent materials available on the record in support of the contention of the appellant, nor the senior officials explained the fact that the 8 Nos. of road rollers were lying in the factory. So, the contention of the ld.Advocate cannot be accepted as it was not substantiated by any evidence. The case laws referred by the ld.Counsel are not applicable in the present facts and circumstances of the case.
6. In view of the above discussions, I do not find any merit in the appeal filed by the appellant. Accordingly, the impugned order is set aside and the appeal is rejected.
( Pronounced in the open Court on 05.12.2016) Sd/ (P. K. CHOUDHARY) MEMBER (JUDICIAL) mm 8 Ex.Appeal No.341/07