Customs, Excise and Gold Tribunal - Delhi
M/S. Mewar Bottling Co. (P) Ltd. And Sh. ... vs C.C.E., Jaipur on 18 April, 2001
Equivalent citations: 2002(140)ELT237(TRI-DEL)
ORDER
S.S. Kang
1. The appellants filed these appeals against the order-in-appeal passed by the Commissioner (Appeals).
2. Brief facts of the case are that the appellants are engaged in the manufacture of aerated water. The excise officers visited the factory of the appellants and 2,92,270 crown corks of various brand names were found short. It was also found that the appellants availed the benefit of MODVAT Credit in respect of caustic soda found short. A show cause notice was issued to the appellants and the adjudicating authority confirmed the demand on the ground that the crown corks, found short, were used in the manufacture of aerated water, which was cleared without payment of duty. The adjudicating authority also ordered recovery of MODVAT Credit on caustic soda, which was found short. Personal penalties were also imposed on the appellants as well as on the employees of the companies.
3. Ld. counsel, appearing on behalf of the appellants, submits that the demand on the basis of shortage of crown corks, is not sustainable in absence of any evidence to show that the appellants have manufactured such quantity of aerated water. He submits that the appellants are getting concentrate to manufacture aerated water and there is no evidence to show that they had received concentrate to manufacture such quantity of bottles of aerated water. He also relies upon the decision of the Tribunal in the case of C.C.E. vs Ludhiana Bottling Co. reported in 1997 (93) E.L.T. 177 and submits that in this case the Tribunal held that duty cannot be confirmed only on the shortage of crown corks as the goods are damaged during the manufacture of final product. In respect of demand of duty on caustic soda, he submits that 3650 kg. caustic soda was used in the manufacture of final product, but the quantity of caustic soda was not shown as issued from the stock register maintained by the factory due to oversight. He submits that the caustic soda is used for clearing the bottles before filling and it was also used for the general cleanliness of the factory. He, therefore, prays that the appeals be allowed. Heard ld. D.R., who reiterates the findings of the lower authorities.
4. In these cases, the duty is demanded on two counts. The officers of the revenue department found short a certain quantity of crown corks and demanded the duty is demanded on the ground that the crown corks are used in the manufacture of aerated water, which was cleared without payment of duty. There is no other evidence in respect of other raw-materials used in the manufacture of such quantity of earated water. The Tribunal in the case of C.C.E. vs Ludhiana Bottling Co. (supra), after relying upon the earlier decision of the Tribunal held that the demand of duty based merely on waste of crown corks or their non-accountal, is not sustainable. In the present case also, the demand is being made only on the count of shortage of crown corks. Therefore, demand on this count is not sustainable. Hence set aside.
5. In respect of shortage of caustic soda, the appellants only submit that this was used in or in relation to the manufacture of final product and due to mistake, this was not shown issued from the stock register. The appellants availed the benefit of MODVAT Credit on the quantity of caustic soda and there is no explanation or proof showing that this quantity was used in the manufacture of final product. Therefore, the demand under rules 57 I as well under 57 I (4) of the rules in respect of caustic soda is upheld.
6. In respect of personal penalties imposed on Sh. Sudhish Goenka, Director and Sh. Ram Kishan Chaudhary, employee of the company under Rule 209 A of the Central Excise Rules, there is no finding by the adjudicating authority as well as the appellate authority also in respect of their acts or omissions to evade payment of duty or attempted to evade payment and in absence of such finding, the imposition of personal penalties is not sustainable, hence personal penalties imposed on two appellants are set aside. The appeals are disposed of as indicated above.