Custom, Excise & Service Tax Tribunal
M/S Bisleri International Pvt. Ltd vs Cce, New Delhi on 3 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 3.4.2014
Appeal No. E/453/2007-EX(SM)
[Arising out of the Order-in-Appeal No. 101/CE/DLH/2006 dated 1.12.2006 passed by the Commissioner of Central Excise, (Appeals), New Delhi)
For Approval & signature :
Honble Ms. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
M/s Bisleri International Pvt. Ltd. Appellant
Vs.
CCE, New Delhi Respondent
Appearance Shri R.M. Saxena, Advocate - for the appellant Shri R.K. Mishra, D.R. - for the respondent CORAM: Honble Ms. Archana Wadhwa, Member (Judicial) Final Order No. 51641/2014 Per Archana Wadhwa :
After hearing both the sides, I find that the appellant is engaged in the manufacture of mineral water and are also manufacturing pet bottles from resins. Such pet bottles are also being got manufactured by them from various job workers.
2. There were visit of the officers in all the three factories of the appellant located at New Delhi, Jaipur and Noida on 30.5.2000. It is pertinent to mention that no discrepancy either in the stock of raw material or the final product was noticed by the officers. However, certain records were resumed, the scrutiny of which revealed that the appellants have been claiming wastage in the manufacture of the plastic bottles. Inasmuch as the wastage reflected by the appellant in the records was more than 1%, Revenue entertained a view that the appellant had manufactured the pet bottles by showing higher wastage and have used the said pet bottles for manufacturing mineral water, which stands cleared by them on clandestine basis.
3. On the above basis, proceedings were initiated against them resulting in passing of the impugned orders confirming the demand of duty of Rs.39,69,683/- along with imposition of penalty of identical amount.
4. After hearing both the sides, I find that the Revenues entire case is based upon the allegations and findings of excess wastage during the course of manufacture of plastic bottles. The appellants have explained that such wastage arise during the course of manufacture of pet bottles as also during the course of filling of the bottles with the water. Inasmuch as the said wastage was being reflected by them in their statutory records and no objection was being raised by the department, the allegation of clandestine removal on the sole basis of the wastages being excess cannot be upheld.
5. On the other hand, the Revenue relies upon the statement of the job workers as also the appellants representative indicating that in the normal course of manufacture of pet bottles no wastages arise or if arise they are mostly to the tune of 0.5% to 1%. The Revenue has also alleged that the appellant has shown sale of such pseudo excess plastic waste inasmuch as the buyers are not locatable.
6. The contention of the ld. Advocate is that 10% of the sale of plastic scrap was to one manufacturing unit who had shown the receipt of the same and reflection of the same in his Central excise records. No investigation stand made at his end.
7. After appreciating the submissions made by both the sides, I find that the Revenues entire case is based upon the sole basis of generation of excess plastics scrap at the time of manufacture of plastic bottles. Otherwise, there is virtually no evidence to reflect upon the manufacture of the mineral water bottles or transportation of the same or clearance of the same to identify the buyers. The charges of clandestine removal cannot be upheld on the basis of assumptions and presumptions.
8. In fact, I find that an identical dispute was the subject matter of the appeal filed by the appellants sister concern before Tribunal. The Tribunal, in the case of Acqua Minerals Ltd. Vs. CCE - 2004 (178) ELT 851 (Tri.-Del.) held as under :
7. We have perused the records and heard the learned SDR also. Clearly, there is merit in the appellants contentions. The appellant was reporting actual wastage of inputs contemporaneously. The quantities so stated were not disputed. The present demand is based on the assumption that the actual wastage can be only 0.5%. This is merely an assumption, inasmuch as the appellant had given various reasons that justified the actual wastages. There is no evidence brought on record showing that the quantity stated as wastage was actually false and the wastage to that extent had not arisen. There is also no tangible evidence of any kind showing unaccounted stocks being sold, transported or stocked by dealers. There is not even a single verification report showing that quantity of wastage shown was found to be not actual. These facts and circumstances give credibility to the appellants submission that their records faithfully represented production and clearance and that the allegation of clandestine production and removal have been made purely on surmise, assumptions and presumptions. It is well settled that a duty demand cannot be maintained on assumptions and presumptions Oudh Sugar Mills Ltd., (supra). Even these assumptions lose their credibility in view of the appellants submission that allegations have been made without taking into account appellants capacity of production at various times. The specific case of clearance of preform to M/s. Superior Pet P. Ltd. remains explained by contemporaneous records. In these circumstances, we are of the opinion that the case is not based on evidence. The demand is also time barred. The appellant had been reporting the wastages of inputs to the jurisdictional authorities. Evidence on record do not show that those reports were false and that facts had been misstated or suppressed. Therefore, Proviso to Section 11A is not attracted. Since we have already held that duty demand is not sustainable, occasion for considering penalty, including against Shri Ashish Sethi, Director (under Rule 209A) does not arise.
9. By following the above decision, I find no merit in the Revenues contention. Accordingly, the impugned orders are set aside and appeal allowed with consequential relief to the appellant.
(Archana Wadhwa) Member (Judicial) RM 1