Customs, Excise and Gold Tribunal - Delhi
Kiockner Supreme Pentaplast Ltd. vs Commissioner Of Central Excise on 12 April, 2002
Equivalent citations: 2002(82)ECC301
ORDER Krishna Kumar, Member (J)
1. This is an appeal against the order dated 1.11.2001 passed by the Commissioner (Appeals), Central Excise, Bhopal. The issue relates to shortage of goods and the items involved is rigid PVC films covered under Chapter Heading 3920.11, period of dispute is 20.6.95 and the amount of duty involved is Rs. 31,650 and the amount of penalty involved is Rs. 2000. Shri J.S. Agarwal, learned Advocate has appeared on behalf of the appellant and he has drawn my attention to the discussions and finding as recorded by the Assistant Commissioner and has submitted that the Assistant Commissioner has noted that the assessees' submission as regards to shortage of 1332.62 Kgs of rigid PVC films/sheet appears to be correct because the charge of clandestine removal without any corroborated evidence is not at all sustainable. Merely on the basis of shortage found in the factory, it cannot be concluded that the goods have been removed in a clandestine manner. He also submitted that the total shortage involved is 1.5%. He also drew my attention towards the Order-in-Appeal at page 6 para 4 and submitted that the Commission (Appeals) has not given any reasons and he has passed a non-speaking order without applying his mind. The admission has been referred to in the Order-in-Appeal. Learned Advocate submitted that this is recorded in para 2 at page 11 of the Order-in-Original which says that Shri Kamal Kumar Sharma in his statement recorded under Section 14 of the Central Excises and Salt Act, 1944 on 21.6.95 and then on 5.10.95 admitted the shortage and deposed that it could have happened due to human error either in production reports or packing slips. The learned Advocate forcefully contended that this cannot amount to admission on the part of the appellants and as such, the order of the Commissioner (Appeals) based on this statement is a cryptic order and is not legally sustainable. In support of his contention, the learned Advocate has relied on the decision in the case of Sri Ramakrishna Mills Ltd. v. Commissioner of Customs, Chennai 2001 (123) ELT 453 and the case of Apex Detonators P. Ltd. v. CC&CE, Nagpur 2002 (49) RLT 380 and he submitted that the matter may be remanded to the Commissioner (Appeals) for de novo adjudication.
2. Shri H.C. Verma, learned JDR has appeared on behalf of the Revenue and in the light of the facts of the case, he submitted that he has no objection to the matter being remanded to the learned Commissioner (Appeals) for de novo adjudication in the light of the above stated legal position.
3. After hearing the rival submissions and perusal of the records, I remand the matter to the Commissioner (Appeals) for de novo adjudication after affording a reasonable opportunity of being heard and pass a fresh speaking order.