Customs, Excise and Gold Tribunal - Bangalore
Sarita Steel And Industries Ltd. vs The Commissioner Of Central Excise on 15 June, 2006
ORDER S.L Peeran, Member (J)
1. The Appeal No. E/76/2004 arise from Order-in-original No. 33/2004 dated 16.10.2003 by which the Commissioner has confirmed demands of duty of Rs. 7,60,437/- in respect of 349.626 MT CTD Bars of dia 7 mm and 8 mm in terms of proviso to Section 11A(1) of CE Act. There is a penalty of Rs. 2.50 lakhs under Rule 173Q of CE Act on the company. In appeal No. 77 and 78/2004 arising from Order-in-Original No. 24/2003 dated 13.10.2003 duty demand of Rs. 10,13,010/- on 506.505 MT of Channels found short has been confirmed under proviso to Section 11A(1) of CE Act. The confirmation of duty of Rs. 90,730/- on 45.365 MT of Channels removed and used for construction of shed within the factory under proviso to Section 11A(1) of CE Act. There is a demand of Rs. 1,600/- on the quantity of 2 MT of Boring/Turning Scrap manufactured and cleared without payment of duty under proviso to Section 11A(1) of CE Act. A penalty of Rs. 2,5007- on Shri G. Satish, Joint Managing Direction under Rule 209A and personal penalty of Rs. 10,000/- on Shri N.V. Jayaram, Asst. Manager has been imposed under Rule 209A of CE Rules 1944.
2. We notice that the matter had been adjourned on a number of occasions and the party had been informed that no further adjournments would be granted and the appeal would be heard on merits in case no representation is made today. A representative of the appellant had signed the order sheet on 25.4.2006 for having noted the date.
3. The learned SDR submits that there is no merit in these appeals. He points out that the Commissioner in both the orders have applied his mind and considered all the submissions made by the party. In Order-in-Original No. 33/03 dated 16.10.2003, the Commissioner has examined their pleas and held that the assessee had cleared the goods by Delivery Challans describing the goods as "second sales". They have failed to produce any documents for purchase of goods of dia lesser than 10 mm such as payment details and trading account, purchase register to the officers for verification during the course of investigation. The Commissioner after due consideration of all the facts found that there was a deliberate nonpayment of duty and hence, the duty have been confirmed. The learned SDR points out to the memo of appeal and submits that the assessee has not taken any substantial grounds to challenge the confirmation of demand. In so far as the Order-in-original No. 24/2003 dated 13.10.2003 is concerned, the learned SDR submits that there is no denial of facts of removal of MS Channels for construction of sheds. He points out that the item is not exempted in terms of the Notification No. 67/95 CE dated 16.3.1995 as claimed by them. The Notification applies only to those goods which are captively consumed for manufacture of final goods. For setting up a shed within the factory, the appellants are required to discharge duty on raw materials. He submits that the ground raised in the appeal is that item is exempted under the said notification. He submits that the Commissioner was justified in denying the benefit for goods removed for construction of sheds, as the shed is not a capital goods.
4. The learned SDR relies on the ruling rendered in the case of Giriraj Hydraulics Pvt. Ltd. v. CCE, Raipur 2004 (96) ECC 481 wherein the Tribunal has dismissed the appeal in a circumstance where duty has not been paid in respect of raw materials which has not been entered in the Register. Further reliance is placed on Jindal Strips Ltd. v. CCE, Rohtak 2004 (94) ECC 433, wherein also the appeal was dismissed on similar grounds. Further reliance is placed on Jayant Extraction Indus. Ltd. v. CCE, Rajkot as wherein also the Tribunal has dismissed the appeal and confirmed the demands in similar facts and circumstances. Reliance is also placed on Q.H. Talbros Ltd. v. CCE, New Delhi wherein also the appeals were dismissed by confirming the demands. The Madhya Pradesh High Court judgment rendered in the case of Ratlam Wires Pvt. Ltd. v. CESTAT, New Delhi is also relied in support of his submissions.
5. We have carefully considered the submissions. We have gone through both the orders including the grounds of appeals. It is very clear that the appellants have not discharged duty in respect of goods removed as "second sales". Even in respect of goods MS Channels removed for construction of the shed within the factory, they are not eligible for the benefit of the Notification No. 67/95 as claimed by them for the reason that the benefit of Notification is available to the inputs/capital goods which have been used within the factory in the manufacture of final goods. In the present case, the shed which has been set up by the appellants are not exempted and hence, the benefit is not available. The above cited judgments relied on by the learned SDR clearly supports the Revenue's case. The Commissioner has examined the issue in detail and found that the charges have been proved in the case. There is no merit in these appeals and the same are dismissed.
(Pronounced and dictated in open Court)