Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Siliguri vs M/S Asha Ispat (P) Ltd on 24 February, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Ex. Appeal Nos. EDM-451,452/05
Arising out of Order-in-Appeal No.59/Slg./2005 dated 31.5.2005 passed by Commissioner of Central Excise (Appeals), Kolkata.
For approval and signature:
SHRI S. S. KANG, HONBLE VICE PRESIDENT
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Siliguri
APPELLANT(S)
VERSUS
M/s Asha Ispat (P) Ltd.
Shri Rajesh Agarwal
RESPONDENT (S)
APPEARANCE Shri R. K. Chakraborty, SDR for the Department Shri B. N. Chattopadhyay, Consultant for the Respondent (s) CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER Date of hearing & decision : 24. 02. 2010 ORDER NO.. Per S. S. Kang :
Heard both sides. The Revenue filed these appeals against the Order-in-Appeal passed by the Commissioner (Appeals).
2. Brief facts of the case are that the show-cause notice was issued for demand of duty and for imposition of penalty on the ground that the respondents firm M/s Asha Ispat (P) Ltd. cleared the goods without payment of duty as per the seized records and an investigation was started with the interception of truck carrying certain iron castings and bentonite power. There is no duty paying documents under which the goods are being cleared. The goods were seized and thereafter, the premises of the respondents were searched. During search, certain documents were seized. On the basis of the documents, the Revenue come to the conclusion that the respondents cleared the goods without payment of duty.
3. The adjudicating authority confirmed the duty and imposed a penalty. On appeal filed by the Revenue, the Commissioner (Appeals) set aside the adjudication order on the ground that there was no evidence regarding clandestine manufacture or clearance of the goods. The record which was seized from the factory of the respondents shows only certain figures which was not got interpreted from the workers or employees of the respondents firm.
4. The contention of the Revenue is that as the seized record is recovered from the premises of the respondents, therefore, relates to production or clearance of goods manufactured by the respondents which are not reflected in the statutory records. Prayer in the appeal memo is that the document resumed or seized from the premises on 12.12.2003 is an evidence to adjudicate the impugned case. The contention of the Revenue is that the Commissioner (Appeals) had not appreciated the evidence collected by the Revenue in the right perspective. Therefore, the impugned order is not sustainable.
5. The contention of the respondents is that the records which were not resumed from the factory premises and as per the statement of Shri Ajay Maitra, Manager recorded on 12.12.2003, show that the same were seized from the residential premises of one of the staff, Shri Gautam Mondal. No investigation regarding the documents were made from Gautom Mondal. Even his statement was not recorded. The contention is that as there is no evidence as held by the Commissioner (Appeals) which relates the documents to the production or clearance of goods which was not recorded in the statutory record and cleared without payment of duty, hence, the impugned order is rightly passed. In respect of the goods seized from the truck, the contention is that the consignment also consist of the bentonite powder which is not the final product and in respect of the steel casting, the respondents produced the evidence to show that the same has been purchased from North Valley Ispat Udyog Pvt. Ltd. and the relevant invoice in this regard is produced before the Revenue Authority. In the circumstances, the impugned order does not call for any interference.
6. We find that in this case, certain documents were seized from the residential premises of Shri Gautam Mondal on 12.12.2003. The case of the Revenue is that the same relates to production and clearance of the goods manufactured by the present respondents. We find that no investigation was conducted from Shri Gautam Mondal which is said to be a staff of the manufacturing unit. The statement of Shri Ajay Moitra, Manager was recorded on 12.12.2003, but the documents seized were not put to him. Further, we find that certain goods were seized from the truck which is as per the Revenue the same are cleared without payment of duty, but we find that no statement of truck driver in this regard was recorded. Further we find that at page 16 of the impugned order, the Commissioner (Appeals) has taken note of the fact that the capacity of furnace of respondents was 2 MT and the quantities mentioned in the seized documents were taken to be a production of the respondents unit and for the period mentioned in the documents, there was excess production to the extent of 166%, 174% & 182% which is not possible. In the ground of appeal, the only contention of the Revenue is that the seized records is to be taken as evidence which show that the respondents manufactured and cleared the goods clandestinely. We find that as the some documents which were seized from the residential premises of one staff Shri Gautam Mondal and his statement was not recorded and the so-called documents were not put to the Manager or to any other authorized signatory even the statement of the driver of the truck from which the some castings and chemicals were seized, was recorded. We find no infirmity in the impugned order and both appeals are dismissed.
(Dictated and pronounced in the open Court)
Sd/ Sd/
( S. K. GAULE) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
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Ex.Appeal Nos.EDM-451-452/05