Custom, Excise & Service Tax Tribunal
M/S Ganga Kisan Sahkari Chini Mills Ltd vs Cce, Meerut on 12 June, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO.II
E/Appeal No.3427 & 3429/04 -EX(BR)
(Arising out of order in appeal No.215/CE/MRT.I/04 dated 29.3.04 passed by the Commissioner of Central Excise (Appeals), Meerut-I)
For approval and signature:
Honble Mr. M. Veeraiyan, Member(Technical)
Honble Mr.P.K. Das, Member(Judicial))
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 should 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
Departmental authorities?
______________________________________________________
M/s Ganga Kisan Sahkari Chini Mills Ltd Appellant
(Rep. by Shri Bipin Garg, Advocate)
Vs
CCE, Meerut Respondent
(Rep. by Shri V.K. Agarwal, DR) Coram: Honble Mr. M. Veeraiyan, Member(Technical) Honble Mr P.K. Das, Member(Judicial) Date of Hearing: 12.6.08 Order No. /2008-SM(BR) Per P.K. Das:
The Appellant filed this appeal against the order in appeal dated 12.4.2004. The relevant facts of the case as per record are that the appellants are engaged in the manufacture of sugar and molasses classifiable under Heading 17.01 and 17.03 of the Schedule to the Central Excise Tariff Act, 1985. The appellants had stored molasses manufactured during the sugar season 1987-88 in five Kachha pits and one pucca pit and steel tank. They filed an undertaking to pay full duty, if such molasses get deteriorated, lost, destroyed for any reason for storing the goods in kuchha pits and they will not ask for remission of duty. The Central Excise officers visited the appellants factory on 10.11.1989 and detected shortage of 31,813.51 Qtls of molasses for the sugar season 1987-88 and 1988-89. A show cause notice dated 7.3.90 was issued demanding duty on the said shortage. It is seen that they have not deducted the shortage of molasses in the RT 12 return for the month of November, 1989 onwards. On scrutiny of RT 12 return for the month of December, 1992 and January, 1993, the appellants deducted the quantity of 72,634.60 Qtls from the opening balance for the season 1987-88 and 1988-89. The Central Excise officers issued show cause notice dated 7.3.90 proposing duty on the shortage of 31,813.51 Qtls of molasses for the said seasons. Therefore, another show cause notice dated 2.7.93 was issued proposing to demand of duty of the balance quantity of shortage of 4082.09 Qtls against the said seasons, which is the subject matter of this appeal.
2. The Adjudicating Authority confirmed the demand of duty of Rs. 7,04,163.80 and imposed penalty of Rs. 2 lakhs under ?Rule 173-Q of the erstwhile Central Excise Rules, 1944. The Commissioner (Appeals) reduced the penalty to Rs.50,000/- and the demand of duty was upheld. Hence the appellants filed this appeal before this Tribunal.
3. The learned Advocate on behalf of the appellants submits that it is revealed from the show cause notice that the total quantity of 72634.160 Qtls of molasses for the sugar seasons 1987-88 and 1988-89 were lost during the storage of goods. He submits that the appellants informed the Central Excise officers and the state Authorities regarding loss of molasses on various occasions. He further submits that the applicants had applied for remission of duty vide their letter dated 15.4.91 and 17.7.91 and to destroy these goods since completely deteriorated. He also submits that the appellants in reply to show cause notice dated 6.9.93 contended that their application for remission of duty was pending before the Commissioner of Central Excise.
4. The learned DR reiterates with the findings of the Commissioner (Appeals). He submits that the appellants failed to produce any evidence in support of the contention that the application for remission of duty is pending before the Competent Authority and therefore, demand of duty is justified.
5. After hearing both the sides and on perusal of the record, we find that the main contention of the learned Advocate is that the application for remission of duty is pending and therefore, demand of duty is not sustainable. The Adjudicating Authority observed that the appellants took the plea in their reply to show cause notice dated 6.9.93 that application for remission of duty was pending with the Commissioner of Central Excise. It is noticed that in the same paragraph, it has been observed that the Adjudicating Authority that the appellants had not made any mention in their defence reply dated 6.9.93 or in their letter that they have filed any application with the Commissioner. We find that the finding of the Adjudicating Authority is apparently inconsistent and contradictory. In any event, it is seen from their letter dated 6.9.93 that the appellants filed application for remission of duty which was pending with the Commissioner of Central Excise. The Adjudicating Authority made an enquiry and the Deputy Commissioner (Tech) Central Excise, Meerut vide letter dated 11.10.2001 informed that no such application is pending with the Commissioner of Central Excise. We find that the appellant is claiming that the remission application is pending before the competent authority and the Adjudicating Authority proceeded on the basis of enquiry report by letter dated 11.10.2001 which was not disclosed to the appellants. In view of that, we find that the factual fact of this matter is required to be examined by the Adjudicating Authority. Hence the impugned order is set aside and the matter is remanded back to the Adjudicating Authority for deno adjudication after finalization of the application for remission of duty. The appeal is allowed by way of remand.
(Order dictated and pronounced in the open Court).
(M. Veeraiyan) Member(Tech) (P.K. Das) Member(Judl) MPS*