Custom, Excise & Service Tax Tribunal
M/S Malwa Sahakari Shakkar Karkhana Ltd vs Cce, Indore on 8 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III Excise Appeal No. 2135 of 2011 (SM) [Arising out of the Order-in-Appeal No. IND/CEX/000/AAP/236/ 2011 dated 15/06/2011 passed by The Commissioner (Appeals), Central Excise & Customs, Indore.] For Approval and signature : Honble Shri Rakesh Kumar, Member (Technical) 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 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 Malwa Sahakari Shakkar Karkhana Ltd. Appellant Versus CCE, Indore Respondent
Appearance None for the appellant.
Shri R.K. Verma, Authorized Representative (DR) - for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 08/08/2013.
Final Order No. 57611/2013 Dated : 08/08/2013 Per. Rakesh Kumar :-
The appellant are manufacturers of sugar chargeable to Central Excise duty. There are two allegations against the appellant. First allegation is that while during 2008-2009 and 2009-2010, they were availing of SSI exemption, during the months of December 2008, January 2009 and May 2009 they used capital goods Cenvat credit for payment of part of the duty and thereby contravened the condition of SSI exemption and, hence, they would not be eligible for SSI exemption. On this basis, the duty demand of Rs. 1,99,443/- has been raised. The other allegation against the appellant is that in course of stock taking, there was a shortage of 184.59 quintals brown sugar and 681.36 qntl. of white sugar involving duty of Rs. 71,087/-. On this basis, after issue of show cause notice, the Jurisdictional Assistant Commissioner vide order-in-original dated 14/1/11 confirmed the duty demands of Rs. 1,99,443/- and Rs. 71,087/- alongwith interest and imposed penalties on the appellant. On appeal to Commissioner (Appeals), the Assistant Commissioners order was upheld by the Commissioner (Appeals) vide order-in-appeal dated 15/06/11 against which this appeal has been filed.
2. Though the appellant have not appeared for hearing, there is a communication from them requesting for decision of their appeal on merits, as they do not wish to be present for personal hearing.
3. Heard Shri R.K. Verma, learned DR who pleaded that so far as the question of shortage of sugar is concerned, shortage is of 681.36 quintals of white sugar and 184.59 quintals of brown sugar for which there is no satisfactory explanation, that as regards duty demand of Rs. 1,99,443/-, since the benefit of SSI exemption under Notification No. 8/2003-CE is available subject to condition that the manufacturer does not utilise the credit of capital goods Cenvat credit for payment of duty, this condition have been violated by the appellant and, hence, the SSI exemption has been correctly denied. He, therefore, pleaded that there is no infirmity in the impugned order.
4. I have carefully considered the submissions from Shri R.K. Verma, the learned DR and I have gone through the memorandum of appeal filed by the appellant.
5. As regards, the duty demand of Rs. 71,087/-, the same in respect of shortage of 681.36 quintals of white sugar and 184.59 quintals of brown sugar. Though for this shortage, the appellants explanation that the same is due to seepage and moisture absorption, this explanation is not satisfactory as the same would not result in reduction of weight. Therefore, so far as duty demand of Rs. 71,087/- is concerned, the same has been correctly upheld.
6. As regards, the duty demand of Rs. 1,99,443/- the same is based on denial of SSI exemption. The appellant during the period of dispute while availing SSI exemption had also utilised the capital goods Cenvat credit for payment of duty and thereby have contravened the condition of SSI exemption. Subsequent reversal of the credit after detection of this irregularity would not make any difference as during the period of dispute, the conditions of the notification had been violated by utilising the capital goods Cenvat credit for payment of duty while at the same time availing of SSI exemption. In view of this, I hold that the Cenvat credit has been correctly denied. I, therefore, do not find any infirmity in the impugned order. The appeal is dismissed.
(Pronounced in the open court.) (Rakesh Kumar) Member (Technical) PK ??
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