Custom, Excise & Service Tax Tribunal
Cce, Jaipur vs M/S. Dolsun Containers Pvt. Ltd on 9 December, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 2309 -2310 of 2006-EX[SM]
[Arising out of Order-In-Appeal Nos. 104-105 (MPM) /CE/JPR-I/2006 dated 3.04.2006 passed by Commissioner of Central Excise (Appeals), Jaipur ]
For approval and signature:
Honble Ms. Archana Wadhwa, 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?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Jaipur Appellants
Vs.
M/s. Dolsun Containers Pvt. Ltd. Respondent
M/s. Samcor Glaoss Ltd.
Appearance:
Shri U K Srivastava, AR for the Appellants None for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing /Decision: 9.12.2013 ORDER NO . FO/ 58732-58733 /2013-SM(Br) Per Ms. Archana Wadhwa:
Both the appeals stand filed by the Revenue against the same impugned order of Commissioner (Appeals) vide which he has allowed the appeals filed by the respondents.
2. I have heard Shri U K Srivastava, learned DR appearing for he Revenue. Nobody appeared for the respondents. As per facts on record M/s. Dolsun Containers Pvt. Ltd. are engaged in the manufacture of expanded polystyrene moulding, packing falling under heading 39 and corrugated boxes falling under Chapter 48. The appellants entire product is being sold by them to M/s. Samcor Glaoss Ltd. Kota who are paying them either through letter of credit or through hundis.
3. As per Revenue, M/s. Dolsun Containers has received an amount of Rs. 54,49,284 from M/s. Samcor Glass Ltd. through four letters of credit against the invoices, which were not issued from their statutory invoice book. Accordingly, Revenue entertained a view that such payments so received by the appellants relate to clandestine clearances. As a result, proceedings were initiated against them by way of issuance of show cause notice dated 10.8.05 proposing confirmation of duty of Rs. 6,97,790/- and proposing imposition of penalties on both the assessee. The said show cause notice culminated into an order passed by the original adjudicating authority confirming the demands and imposing penalties.
4. On appeal against the above, Commissioner (Appeals) set aside the impugned order by observing as under:
I have carefully gone through the case records, submissions made in the memo of appeal and further oral submissions made at the time of personal hearing. I find that the appellant No. 1 had supplied their finished goods to SGL, during the period July 2000 to April 2001, under cover of statutory invoices and on payment of appropriate excise duty but SGL did not make payment foe the aforesaid goods to the appellant No 1. As SGL was not making payment of the goods, the appellants, approached SGL and requested them to make payment of the aforesaid goods. SGL got ready to make the payment of the aforesaid goods to the appellants, however, through letter of credits. Therefore, for the limited purpose of recovering the old outstanding amounts from SGL, the appellants raised commercial invoices on SGL. Thereafter, SGL issued four letters of credit to the appellants for payment for the aforesaid goods which were earlier cleared under the cover of statutory invoices & on payment of appropriate excise duty. This is the practice prevalent in the Trade with them. Therefore commercial invoices issued by them solely for receiving the amount of goods already cleared under mandatory invoices appear to be sustainable.
5. He has also observed that there is neither any unaccounted manufacture nor any evidence for showing the clandestine clearance. Commercial invoices were raised for the limited purpose of recovery in the outstanding amounts from M/s. Samcor Glass Ltd. He also referred to the Tribunals decision in the case of Arch Pharma Labs Ltd. vs. CCE 2005 (182) ELT 413 wherein under similar circumstances Tribunal held that mere fact of raising of Commercial invoices cannot be held to be a proper evidence for upholding the charges of clandestine removal. Accordingly by referring to various other decisions also, he held in favour of the assessee.
Hence the present appeal by the Revenue.
6. After going through the impugned order as also the grounds of appeals and the arguments of the learned DR, I find that the Revenues sole reliance is on the commercial invoices raised by M/s. Dolsun Containers, without their being any other evidence to reflect upon unaccounted manufacture and clandestine clearance of the goods. The respondents have explained the reason for raising of such commercial invoices, which relates to previous clearances made under the cover of statutory central excise invoices. It is well settled that clandestine removal has to be proved by production of sufficient, positive and tangible evidence. There is virtually no evidence on record. As such, I am of the view that Commissioner (Appeals) has rightly accepted the stand of the respondents and has rightly dropped the demand.
7. In view of the foregoing, I find no reason to interfere in the impugned order of Commissioner (Appeals). Revenues appeals are rejected.
(operative part of the order pronounced in the open Court )
( Archana Wadhwa ) Member(Judicial)
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