Customs, Excise and Gold Tribunal - Calcutta
Associated Ploymer Industries vs Commissioner Of Central Excise on 17 February, 2005
Equivalent citations: 2005(101)ECC666
ORDER V.K. Jain, Member (T)
1. Heard Shri A.K. Biswas, Advocate on the Stay application filed by the Appellant. This is a case involving clandestine removal of the excisable goods and the shortage of the Modvatable inputs. The duty involved is Rs. 4.62 lakhs and an equal amount of penalty have been imposed. He says that the shortage was due to non-weighment of granules lying scattered in the premises. The shortage of HDPE pipes were the consignments which were already cleared in two invoices but not dispatched by the transporter due to their difficulties and returned to the factory premises. He submits that the Commissioner (Appeals) has not given any effective hearing and as such at this stage of the stay the appellant may be dispensed from the payment of duty and penalty. He further submits that Rs. One lakh has already been deposited by the appellants which was adjusted by the Adjudicating Authority.
2. Heard Shri J.R. Madhiam, Ld. JDR for the Revenue. He submits that there was a joint verification done at the time of visit by the Central Excise officers. The appellant at no stage has said that the joint verification was done under pressure or duress. He submits the findings of the lower authority that as per the statutory records physically stocks of the input should be 20284 kgs but it was found nil. The shortage was admitted by the partner of the appellant Mr. Jagmohan Daga. As regards the removal of HDPE pipes on 7th and 8 February, the adjudicating officer has found it the plea of the appellant not acceptable that the transporter did not dispatch the two consignments till the date of stock taking. He also submits that the personal hearing in this case was given by the Commissioner (Appeals) on 26, 27th and 29th April, 2004 and the Appellant Have not appeared for the hearing. He relies on the Commissioner's (Appeals) observation in this regard contained in para 5.
3. After hearing both the sides, we find that the issue is debatable. We can take it at the time of final hearing. Suffice to say at this stage the assessee have not made a case for total dispensation of duty and penalty, We direct the appellant to deposit Rs. one lakh within a period of 8 weeks from today. After depositing the above amount, the rest of the duty and penalty shall remain dispensed with. Case to come up for compliance and hearing on 5.5.2005.