Custom, Excise & Service Tax Tribunal
M/S.Aroras Box & Cartons Pvt. Ltd vs Cce, Delhi-I on 11 June, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
Date of Hearing/Decision:11.06.2013
Excise Appeal No.E/681 of 2006
M/s.Aroras Box & Cartons Pvt. Ltd. .Appellant
Vs.
CCE, Delhi-I ..Respondent
Excise Appeal No.E/682 of 2006 Shri Devender Arora Appellant Vs. CCE, Delhi-I Respondent Excise Appeal No.E/683 of 2006 Shri Baldev Arora Appellant Vs. CCE, Delhi-I Respondent Appearance: Rep. by Shri R.K. Hasija, Advocate for the appellant.
Rep. by Shri R.K. Mathur, DR for the respondent.
CORAM : Honble Shri D.N. Panda, Judicial Member Honble Shri Rakesh Kumar, Technical Member Final Orders Nos.57160-57162/2013 Dated: 11/06/2013 Per. D.N. Panda:
Both sides are in controversy on the facts to establish whether appellant manufactured handicrafts or non-handicrafts boxes and whether eligible to the relevant notification benefit.
2. In the first lot of dispatch of 8 containers to the Development Commissioner, by revenue for examination, that revealed 7 boxes were handicrafts and one was non-handicraft. This was communicated by the Development Commissioner by letter dated 24.09.98. Thereafter again 11 boxes were sent by Revenue for testing on 8.1.99. That revealed that only one box was handicraft and rest of the 10 were not so.
3. While the matter stood thus, without knowledge of Revenue, the appellant itself sent 8 boxes to the Development Commissioner by its letter dated 7.9.99 i.e. 8 months after the second testing was done by the Development Commissioner, to make a review. That review resulted in favour of the assessee. Appellant had not at all intimated to Revenue about sending of boxes for Review. Accordingly the Review Report has become unilateral.
4. Looking to the age of litigation for more than a decade and also noticing that both sides were in dispute on the very proportion of handicraft and non-handicraft boxes and also self same box may not be available for further testing, the dispute is resolved keeping in view the average ratio of the first and second report of the Development Commissioner.
5. Ld. Counsel says that the demand to the extent of Rs.5,97,000/- shall only sustain if average proportion is applied. Revenue is unable to say whether sending the matter back for a further test by the Adjudicating Authority shall survive any useful purpose. Therefore to resolve the dispute and reduce the litigation, the demand of duty is reduced to Rs.5,97,000/- as has been stated by the ld. Counsel.
6. We make it clear that we have not gone by averment of ld. Counsel unilaterally to reach to above conclusion. Only because further retest has not become possible in absence of availability of specimen boxes and it is not desirable to remand of the issue, above solution was worked out on the facts and circumstance of the case. Therefore this order shall not be cited as precedent in future.
7. When duty demand to the extent of Rs.5,97,000/- sustains, there shall be penalty to that extent and that sustains interest to follow on the duty demand.
8. Ld. Counsel vehemently opposes levy of penalty on two Directors, Shri Devender Arora and Shri Baldev Arora stating that they were not contributory to any loss of revenue. Record reveals that these appellants were not active to cause loss to Revenue. Accordingly, their appeals are allowed for no malafide noticeable.
9. In the result, appeals of M/s. Aroras Box & Cartons Pvt. Ltd. is allowed partly to the extent indicated above and appeals of Shri Devender Arora and Shri Baldev Arora are allowed.
( D.N. Panda ) Judicial Member ( Rakesh Kumar ) Technical Member Ckp.
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