Customs, Excise and Gold Tribunal - Delhi
Rajinder Alloys Ltd. vs Cce on 20 September, 2002
Equivalent citations: 2003(86)ECC476
JUDGMENT Krishna Kumar, Member (J)
1. This is an appeal against the order dated 3.11.1993 passed by the Collector of Central Excise, Kanpur. By the impugned order, the Collector has confiscated 78.324 MTs of CRF Sections (U & S) under Rule 173Q and allowed redemption of the same on payment of redemption fine of Rs. 1 lakh in lieu of confiscation; confirmed demand of duty of Rs. 1,33,113.30 P(sic)cn 113.14 MT of CRF Sections (D.C.T.H.Z & A Variety) under Rule 9(2) of Central Excise Rules read with Section 1 A(1) proviso of the Central Excises & Salt Act, 1944 and imposed a penalty of Rs. 50,000 on the appellant under Rule 173-Q which is under challenge in this appeal.
2. The appellants have also filed a Misc application dated 14.9.2001 requesting permission to raise additional grounds of appeal as under:
"One of the grounds agitated before the Collector in the reply to the show cause notice is that the show cause notice has not even been signed by the Collector and hence invalid and unsustainable. The show cause notice bears no signatures and is attested by the Assistant Collector with the list of relied upon documents without initialed by the inspector and the same are not valid in law and no valid adjudication made pursuant thereto."
3. Shri R. Santhanam, learned Advocate, has appeared on behalf of the appellants and he has submitted that the stocks of shapes and sections were jumbled up and it was impossible to segregate them or account them section-wise; that stocks available in the factory was not weighed because weighments are done in dharamkanta which is about 2 kms from the factory. To weigh the stocks available in the factory, roughtly 40 trucks were required and even then, it would have taken 15 days to complete the weighment; Annexure 'A' to the show cause notice does not indicate the process that was adopted to ascertain the figures of balance of various shapes and sections; no chart indicating section-wise counting of various shapes and section was prepared by the Preventive officer, Kanpur, that to ascertain the weight of various sections, method of conversion factor (RUD No. 2) has been used. This table of conversion factor is essentially incorrect; that the quantity ascertained is arbitrary and un-realiable; that the excess allegedly ascertained is 178.374 MT and shortage of 113.142 MT. The excess ascertained in section as per Annexure is 66,849.07; that the officers visited the factory on 24.2.93 and the balance of RGI was taken as per closing balance of 24.2.93. Production of 24.2.93 was taken to 39.890 MT. The officers completed the checks on 27.2.93. Production of 26.3.93 i.e. 33 MTs should have been accounted for ascertaining the alleged excess. The chart Annexure A was prepared in the late hours of 26.2.93 but the production of 26.2.93 was not taken into account while ascertaining the alleged excess of 173.74 MTs; that stock taking, calculation has not been done by Assistant Commissioner, that clandestine removal has not been proved by direct evidence; similarly actual shortages have not been worked out; that the show cause notice has not been signed by the Collector; that finally he submits that the notice not signed is invalid and he relied on the following decisions in support of his contention:
136 ITR 330; 127 ELT 795 68 ELT 807; 132 ELT 659 54 ELT 228 ; 59 ELT 537 The above decisions have been quoted to the effect that the notice not signed is invalid, excess and shortages should be adjusted; actual payment is necessary.
4. Shri R.D. Negi, learned SDR, appearing on behalf of the Revenue, submitted that the detailed stock taking was done; that the section-wise and RGI balance was duly confirmed by the Director/GM and they never retracted the same. After comparing with the RGI balance, shortages were worked out; that with regard to the contention of the appellant that the stock of shapes and section were jumbled up, it may be submitted that the appellant was maintaining RGI account section-wise and as such, it is impossible to apprehend that the segregation was not possible on the visit of the factory by the officers on 25th and 26th February 1993; the physical stocks of the product manufactured by the appellant was available in the factory and was verified section-wise vis-a-vis the RGI balance. The physical stock verification report has been done in the presence of the officers and panch witness, certified by Shri Sanjiv Oberoi, Director of the firm and Shri D.N. Awasthy, Authorised Signatory, clearly shows excess on shapes and Sections whose weight was 133.324 MT valued at Rs. 25,24,404, similarly, the shortage of 113.24 MT C.D.Z.L.N. & A type of sections. It may be submitted that the physical stock verification report as brought out in Annexure 'A', the panchnama has shown the stock of each variety of section separately. The statement has been prepared on 26.2.93 taking into account the production of 25th February 93. The production of 26th February 93 has apparently not been taken into consideration as the same was not available and ripe for accounting. Therefore, the contention of the appellant that the excess and shortages on account of not taking into consideration the production of 26th February 93 has no force. The verification report is quite exhaustive.
5. We have heard the rival submissions, perused the records and case laws carefully. We find that while working out the excess and the shortages as mentioned above, the learned Collector has properly evaluated the evidence on record and has strictly gone by the documentary evidence and the statement recorded which is discussed in detail in the impugned order. The entire case is based on the admitted factual position and by very senior officers of the company namely Shri Sanjiv Oberoi, Director and Shri D.N. Awasthy, Authorised Signatory. In these circumstances, we do not find any reason to interfere with the impugned order. The appeal filed by the appellant is accordingly dismissed. Consequently, the Misc. application requesting permission to raise additional ground is also dismissed.