Customs, Excise and Gold Tribunal - Delhi
Cce vs Jyoti Cements (P) Ltd. And Ors. on 30 November, 2005
ORDER C.N.B. Nair, Member (T)
1. These appeals of the Revenue and cross-objection of the assessee are directed against the same order. They were heard together and are disposed of under this common order.
2. The main grievance of the Revenue is that the Commissioner, erroneously, reduced the duty amount of Rs. 7,60,759/- confirmed in adjudication. It is also being contended that the penalty was incorrectly reduced.
3. We have perused record and heard both sides.
4. The main issue in the proceedings was about clandestine removal of cement by the respondent assessee. The private record seized from the assessee's factory indicated clearance of 9,441.850 MTs. while duty paid clearance was only to the extent of 4883.46 MTs. In view of this, Revenue authorities alleged " clandestine removal of 4,558.450 MTs, involving a duty evasion of Rs. 7,60,759/-. This amount of duty was confirmed in the adjudication. However, when the matter came up in appeal, the Commissioner went through the raw material account of the assessee and came to the conclusion that the non-duty paid clearance was to the extent of only 1320.530 MTs. Clandestine removal up to this extent had also been admitted by the assessee. With regard to the remaining quantity of cement cleared according to the private record, the assessee's explanation was that quantity had been purchased from the market. No evidence whatsoever was adduced in support of the claim relating to the purchase.
5. In the present appeal, the contention of the Revenue is that once clandestine removal remained proved from private records and statements, the Commissioner was in error in requiring the production of such quantity to be proved from raw material accounts as well. The contention of the Id. DR is that the Commissioner has committed a grave error in the appreciation of evidence.
6. The cross-objection of the assessee is in regard penalty imposed by the Commissioner.
7. We find merit in the appeal of the Revenue inasmuch as it relates to the duty demand. Evidence on record supported the original finding that 4558.450 MTs of cement had been clandestinely removed by the assessee. The explanation of the assessee that part of this cement was purchased from the market had not been supported by any evidence. In such a situation, the defence plea of the assessee could not have been accepted. The demand made in the adjudication was fully justified by the evidence on record. The Commissioner was in error in requiring the Revenue to prove clandestine production from raw material consumption as well. In this view of the matter, we allow the appeal of the Revenue in regard to duty demand as well as quantum of penalty on the manufacturer. Accordingly, duty demand is restored to the original amount of Rs. 7,60,759/- confirmed in adjudication and penalty is increased to Rs. 4 lakhs on the assessee manufacturer. The appeals of the Revenue are allowed to this extent. There is no merit in the cross-objections of the assessee whereunder reduction of penalty has been sought. The same is rejected.
8. All the appeals are ordered in the above terms.
(Dictated and pronounced in open Court on 30.11.05)