Custom, Excise & Service Tax Tribunal
Bajrang Agro Industries Pvt Ltd vs Commissioner, Central Excise &Amp ... on 2 March, 2022
1
CUSTOMS EXCISE & SERVICE TAX APPLELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
COURT NO. II
Excise Appeal No.51032 of 2021 (SM)
[Arising out of Order-in-Appeal No.IND-EXCUS-000-APP-148-2020-21 dated 17.03.2021
passed by the Commissioner (Appeals),Customs, Central Goods and Service Tax and
Central Excise, Indore (M.P.)]
M/s.Bajrang Agro Industries P.Ltd. Appellant
Village -Sejwaya, Ghatabillod,
Dhar,
Madhya Pradesh.
VERSUS
Commissioner of Central Goods & Service Tax Respondent
& Central Excise, Ujjain, Madhya Pradesh.
APPEARANCE:
Shri Ankur Upadhyay, Advocate for the appellant. Shri Ishwar Chand, ld. Authorised Representative for the respondent. CORAM:
HON'BLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO.50214/2022 DATE OF HEARING/DECISION:02.03.2022 ANIL CHOUDHARY:
Heard the parties.
2. The period in dispute is 22.12.2016 to 30.06.2017.
3. The facts in brief are that the appellant is manufacturerof Macaroni, and Noodles. They are also manufacturers of Atta, Vermicelli, Suji, Namkeen (fried salted), which are fully exempt. So far Macaroni/Noodles are concerned, which fall under Chapter Heading No.198.02, the same are exempt, if sold in bulk and are dutiable, if the same are sold in unit packs. 2 The appellant was maintaining two series of invoices - L- Series (exempt goods) and E-Series (dutiable goods). A statement of Shri Pratik Goyal, Director was recoded on 17.01.2017. In the course of investigation, he was shown invoices of L-series for clearance of Macaroni in bulk and was asked to specify the packing size of the product- Macaroni. In reply, Shri Pratik Goyal, Director calculated the average size of packing by dividing the total quantity cleared by number of bags and replied that the average packing size was 25 Kg. (Approx.).
4. Thus, from the statement, it is evident that the appellant was not clearing Macaroni in unitize packs under L-Series invoices. Further, I find that from the list of RUDs on which Revenue had relied upon, the L- Series invoices were for theperiod prior to the period of dispute i.e. October, 2012 to 21.12.2016. Similarly, the calculation chart etc. are also for the previous period and not for the relevant period under dispute.
5. Accordingly, I find that the show cause notice is bad in relying upon the non-relevant facts. Further, the show cause notice is also mis- conceived as it has been clearly stated by the Director that they are not clearing in unitize packs and upon being asked by the Revenue, they have stated that average weight of bags upon calculation comes to 25 kg. Thus, the very foundation of the show cause notice is absent i.e. clearance by the appellant in unitize pack under L-Series invoices.
6. Accordingly, in view of my findings, this appeal is allowed. The impugned order is set aside. The appellant is entitled to consequential benefits in accordance with law.
[Order dictated and pronounced in open court].
(ANIL CHOUDHARY) MEMBER (JUDICIAL) 3 Ckp