Customs, Excise and Gold Tribunal - Delhi
Amrit Bottlers Pvt. Ltd. vs Cce on 20 July, 2004
Equivalent citations: 2004(116)ECR394(TRI.-DELHI), 2004(177)ELT277(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. In this appeal, the appellants have challenged the correctness of the impugned order-in-appeal vide which the Commissioner (Appeals) has affirmed the order-in-original of the Addl. Commissioner, who confirmed the duty demand of Rs. 6,59,137.00 with penalty of equal amount payable with interest against the appellants. The duty has been confirmed against the appellants for having been disposed 18958 crates and 05 bottles of manufactured aerated water without their accountal in RG-1 and without payment of duty, during the period August, 1995 to May, 2000, after rejecting plea that the disposed aerated water did not qualify the test with regard to contamination, under/over filling and badly crowned bottles. They also disposed of 615 crates and 11 bottles of samples required for laboratory test without proper accountal and without payment of duty.
2. The Id. Counsel has contended that the disposed aerated water was not marketable and as such did not qualify as 'goods' for the purpose of levying duty. The defects found in that water were indicated by the appellants in their production formats. Therefore, no duty could be claimed in respect thereof and as such the impugned order deserves to be set aside.
3. On the other hand, Id. SDR has reiterated the correctness of the impugned order. We have heard both sides and gone through the records.
4. So far as disposal of 18958 crates and 5 bottles of manufactured aerated water and 615 crates and 11 bottles of samples without proper accountal and without payment of duty is concerned, the same has not been controverted by the appellants. The sole plea taken up by them that after manufacturing certain bottles were found contaminated, under/over filled, badly crowned and the same were destroyed being not marketable. The Counsel has placed much reliance to substantiate this plea, on the photocopies of the Production Formats placed on file. But this plea of the appellants, in our view, had been rightly not accepted by the authorities below. There is no evidence on the record to prove that the fully manufactured aerated water bottles/crates which were destroyed by them, were ever entered in the RG-1 register by the appellants or any other register maintained by them. The perusal of the copies of the Production Formats referred by the counsel only shows that few numbers of bottles were shown therein against the columns, contaminated, under/over filled, badly crowned and lab test. But no evidence has been led to prove if those bottles/crates were actually destroyed. These were admittedly excisable goods manufactured by the appellants. Before destroying the same, they were required to take permission from the competent authority, but no such permission was taken by them. They even did not send any intimation to the department regarding their disposal/destruction on account of non marketability. If those goods were defective, non-marketable, the appellants could seek remission/abatement of duty under Rule 49 of the Rules but this course also they did not adopt. Therefore, their simple plea that they disposed of crates/bottles of aerated water on account of non-marketability or having used in the laboratory test, carries no legal value for want of corroboration from any evidence.
5. The law laid down in CCE v. General Cement Products (P) Ltd. referred by the counsel, is not attracted to the present case. In that case, cement concrete poles while undergoing the mandatory quality test, got destroyed and for that reason, it was observed that the assessee was entitled to the remission of duty payable thereon, But such is not the position in the present case. Similarly, para 48. 17 of Chapter 47 referred by the counsel from the Central Excise Law Manual is not of any help to the appellants. In that para the stage and guidelines in respect of few commodities after manufacture, for entering in the RG-I have been detailed. For aerated water, entry is required to be made in the RG-I immediately the screening test has been completed and where there is no arrangement for such a test, the entry is to be made after the bottles have been filled. But the appellants in the instant case did not make entry about the manufacture and disposal of bottles/crates of aerated water at any stage in the RG-I register. They allegedly destroyed the same of their own without following any procedure.
6. In the light of discussion made above, we do not find any illegaility in the impugned order of the Commissioner (Appeals). The duty demand has been rightly confirmed against the appellants. However, keeping in view the facts and circumstances of the case, the penalty imposed on the appellants is reduced to Rs. 65,000/- (Rupees Sixty Five Thousand only). Except for this modification in the penalty, the impugned order is upheld.
Operative part of the order already pronounced in open Court on 20.7.2004.