Custom, Excise & Service Tax Tribunal
Cce, Kanpur vs M/S.Garima Ferro Alloys (P) Ltd on 5 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/decision:5.09.2013
For approval and signature:
Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical)
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1. Whether Press Reporters may be allowed to see
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?
Appeal No.E/3016/2005-EX (DB)
(Arising out of Order-in-Appeal No.230-CE/APPL/Knp/2005 dated 28.4.2005 passed by the Commissioner (Appeals), Customs & Central Excise, Kanpur)
CCE, Kanpur Appellants
Versus
M/s.Garima Ferro Alloys (P) Ltd. Respondent
Appearance: Rep. by Shri U.K. Srivastava, DR for the appellants.
Rep. by none for the respondents.
Coram: Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical)
Final Order No.57609/2013 /Dated:5.9.2013
Per Archana Wadhwa:
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has preferred the present appeal.
2. Nobody appears for the respondent. We have heard ld. DR for the Revenue and have gone through the impugned order.
4. The dispute relates to the confiscation of excess found goods on the date of visit of the central excise officers in the respondents factory. The same were confiscated by the original adjudicating authority with redemption fine of Rs.50,000/- and penalty of Rs. 25,000/-. On appeal filed to the Commissioner (Appeals), he set aside the redemption fine and reduced the penalty to Rs.5,000/- by observing as under:-
5. I have carefully gone through the order-in-original, grounds of appeal filed and all other documents submitted with grounds of appeal. The appellants have contested that weighment as indicated in the verification report is not correct. The tare weight of bags have not been included on the work sheet does not show that the tare weight has been discounted wile working out the quantity physically present. They have also submitted that finished goods of Grade A were mixed with the lower grade goods at the time of weighment. The total goods available in the factory, as work out was 218.235 M.T. If the tare weight of 5479 Kgs. were deducted the total quantity would get reduced to 212.956 M.T. The quantity recorded in statutory records was 209.810 MT (157.6 MT Grade A + 52.210 MT Lower Grade). Hence, the difference was only of 3 M.T. due to weighment in piecemeal. The appellants have also contested that they were not given opportunity for re-testing the samples drawn by the officers and to challenge the report of Chemical Examiner, New Delhi. I have noticed that in the instant case the excess goods found by the officers were lying in factory premises and there were no positive evidences for its clandestine removal. The Revenue has failed to prove that these excess goods were kept for clandestine removal. Of course this a case of non-maintenance of proper records. The confiscation of seized goods was not warranted. Accordingly, I take a lenient view for the penalty also. But, I disagree with the Appellants on valuation matter of seized goods. The valuation of seized goods @ of Rs.30,500/- per M.T. has been approximately done by ld. Adjudicating Authority on the basis of Chemical Examiner, CRCL, New Delhi. Submissions made by the appellants are not tenable. In view of the above discussions, I pass the following order:-
ORDER
I modify the Order-in-Original No.92/Seiz/99 dated 30.11.99 to the extent that penalty of Rs.25,000/- is reduced to Rs.5,000/- and I waive off redemption fine of Rs.50,000/-. The appeal is disposed of accordingly.
5. The Revenue in their memo of appeal have not advanced any evidence to show that the said goods were either in the process of removal or the respondent had any intention to remove the same without payment of duty. As such, we are of the view that the Commissioner (Appeals) has rightly imposed penalty of Rs.5,000/- for non-maintenance of proper records as also rightly set aside the confiscation of the goods. Revenues appeal is accordingly rejected.
(Archana Wadhwa ) Member (Judicial) ( Rakesh Kumar ) Member (Technical) Ckp.
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