Custom, Excise & Service Tax Tribunal
Venkata Balaji Jute Mills Pvt. Ltd vs Commissioner Of Central Excise, ... on 31 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 27213 / 2013 Appeal(s) Involved: E/796/2007-SM [Arising out of Order-in-Appeal No. 85/2007 (V-I) CE dated 04/08/2007 passed by the Commissioner of Central Excise and Customs, Visakhapatnam] Venkata Balaji Jute Mills Pvt. Ltd. China Jonnavalasa, Amadalavalasa - 532 185 Srikakulam District, Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax - Visakhapatnam-I Central Excise Building Port Area Visakhapatnam - 530 035 Andhra Pradesh Respondent(s)
Appearance:
None For the Appellant Ms Sabrina Cano, Superintendent (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Date of Hearing: 31/12/2013 Date of Decision: 31/12/2013 Nobody is present on behalf of the appellant. It is noticed from the records that on 15.01.2010 when the matter had come up there was a request for adjournment and the matter was adjourned to 05.03.2010 specifically indicating the notice to be issued as last chance. Nevertheless on 05.03.2010 when the matter came up, there was again request for adjournment which was once again granted by the Bench and matter was adjourned to 12.03.2010. However on going through the records on 12.03.2010, it is found that the matter was directed to be listed before Division Bench since both sides agreed that the issue involved is valuation.
2. When this was pointed out to the learned AR, she submitted that the valuation was not an issue in this case. There were two issues in the proceedings. The first issue relates to exemption of cess and this has been dropped by the Commissioner (Appeals) and Revenue is not in appeal. The second issue is the basis of calculation of Hessain cloth used for packing Jute yarn and twine which is exempt and on which the proportionate credit of duty availed was required to be reversed. Therefore the issue involved is a matter appropriate to be heard by Single Member Bench only. It is also noticed that even stay applications were listed before the Single Member Bench but the Stay Order has been passed finally by the Division Bench. Nevertheless the Division Bench also observed that the matter should be listed before Single Member Bench only.
3. In view of the above observations and in view of the fact that appeal relates to 2007, I consider it appropriate if the matter should be decided without giving any further chance to the appellant.
4. Heard the learned AR and gone though the records and the memorandum of appeal filed by the appellant. In this case as it emerges from the order-in-original, that the appellants had filed a declaration with the department that 1.300 kgs of hessain cloth is required for packing 50 kg. of Jute yarn and twine. However while reversing the credit, they calculated the credit attributable to packing material used for exempted material at two yards per 50 k.g. of yarn and the weight of two yards comes only to 0.5 k.g. No explanation for the difference has been forthcoming at any stage of proceedings from the appellants in this regard. The difference between the declaration and the actual quantum of reversal has not been contested on merits before both the lower authorities and in fact appellants have chosen to contest the issue only on limitation and not on merits at all as far as this issue is concerned. It is the submission of the appellant that in the RT-12 returns the reversal was shown and therefore department was very well aware of this fact and hence suppression/mis-declaration cannot be invoked. They have also pointed out in their appeal memorandum that they had written two letters issued by the Range Superintendent in 1997. It is also their submission that in the RT-12 returns the necessary information was furnished. On going through the records it is seen that no doubt the Range Officer had written a letter on 11.07.1997 informing the assessee that actual weight is only 0.5 k.g of hessian cloth for packing exempted goods and therefore the reversal of balance amount of Rs. 19,471/- is required to be made. It has to be noted that even when this letter was issued, the portion of the demand was time-barred. In any case as observed by the Honble High Court of Gujarat in the case of CCE, Surat-I Vs. Neminath Fabrics (P) Ltd. [2010 (256) E.L.T. 369 (Guj.)], what is required to be seen is whether the assessee has fulfilled the obligation required as per the statute and not whether the department was aware of it or not for the purpose of time limit under Section 11A of Central Excise Act 1944. In this case having declared to the department that 1.3 k.g of hessain cloth is required for packing the exempted material, if the quantum on which reversal was made was only to the extent of duty payable on 0.5 kg, it was bounden duty of the assessee to declare to the department as to why the difference has arisen and filed a revised declaration without any further delay. Having declared actual quantum earlier and having failed to declare the revised quantum later, the assessee definitely failed to fulfill the statutory obligation which was cast on them to make correct declaration and also to make correct reversal of the amount to be reversed. While declaration can be said to be procedural, reversal of less amount cannot be considered procedural and the action of the assessee amounts to clear mis-declaration. In the absence of copies of RT-12 returns before me or even before the lower authorities to show that the actual quantum of reversal was shown in the RT-12 and the basis for such reversal was also shown and in the absence of declaration of such claim, the only option available and the only conclusion that can be reached is that assessee has resorted to mis-declaration. In view of the above, I find that the appeal filed by the assessee-appellant has to be dismissed and accordingly is dismissed.
(Order dictated and pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER iss