Custom, Excise & Service Tax Tribunal
Cce, Meerut I vs M/S. Sri Jaibalaji Ispat Pvt. Ltd on 23 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Cross Application No. 122/2011-EX[SM]
Excise Appeal No. 497/2011
[Arising out of Order-In-Appeal No. 260/CE/MRT-I/2010-11 dated 29.10.10 passed by CCE, Raipur]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Meerut I Appellant
Vs.
M/s. Sri Jaibalaji Ispat Pvt. Ltd. Respondents
Appearance:
Shri S.K. Mishra, AR for the Appellant None for the Respondent Coram: Honble Ms. Archana Wadhwa, Judicial Member Date of Hearing: 23.01.2014 FINAL ORDER NO. 50280 /2014 Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), revenue has filed the present appeal. I have heard Ms. Suchitra Sharma, learned AR appearing for the revenue and Shri Sanjeev Aggarwal, Ld. C.A. for the respondent.
2. As per facts on record the respondent are engaged in the manufacture of M.S. Ingot. They were using M.S. Scrap, Sponge Iron, etc. as their raw material and were availing the benefit of Cenvat Credit of duty paid on the said inputs.
3. Their factory premises was visited by the Central Excise officers on 20.07.2009, who conducted various checks and verifications. As a result excess of 37.730 MT was found in their final products i.e. M.S. Ingots and, shortages were deducted in the stock of the raw materials i.e. Sponge Iron and Silico Manganese.
4. On the above grounds, proceedings were initiated against them by way of initiates of show cause notice dated 18.01.2010 raising demand of duty of Rs. 2,27,944/- involved on the short found goods and also proposing confiscation of seized excess final product. The said show cause notice culminated into an order passed by the original adjudicating authority vide which he confirmed the demand of Rs. 2,27,944/- as also imposed penalty of identical amount. In addition seized final product was confiscated with an option to the appellant to redeem the same on payment of redemption fine to Rs. 2,00,000/-.
5. On appeal against the above order Commissioner (Appeals) upheld the confiscation but reduced the redemption fine to Rs. 1,00,000/-. As regard the shortages in the raw-material, he accepted the appellant stand that to weigh such a huge quantum of Sponge Iron, Scrap in a short span of 15 hours and without using the truck, is not only impracticable but was impossible. There was no other evidence corroborating the charges of clandestine removal stand placed on record. Accordingly, he set aside the confirmation.
Hence the present appeal.
6. For detected the shortage of Sponge Iron and Silico Manganese to the extent 275.290 MT and 353 MT as alleged by the Revenue, the officers were required to physically weigh the entire stock of the Sponge Iron & Scrap etc. which was to the tune of around 1491 MT. Commissioner (Appeals) has observed that during the entire span of 15 hours, the officers could have weight not more than 50-60 MT. As such, he has held that there is no evidence to show that actual physically verification was undertaken. He set aside the charge of shortages and the consequent confirmation of demand.
7. Apart from the fact that its not possible to way such a huge quantum of scrap, for which the revenue has neither produced the inventories or any other evidence on record, I also note that apart from the alleged shortages, there is factually no evidence on record to show that the said short raw material was used by the appellant in the manufacture of the final product, which was cleared without payment of duty.
8. As such, I find no infirmity in the order of Commissioner (Appeals). The same is accordingly set aside.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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