Customs, Excise and Gold Tribunal - Mumbai
Hindustan Lever Ltd. vs Commissioner Of Central Excise And ... on 28 September, 2001
JUDGMENT Jyoti Balasundaram, Member (J)
1. Miscellaneous application for retention of this appeal in Mumbai is allowed in view of the fact that the Head Office of the appellant is situated at Mumbai.
2. Arguing on the application for waiver of predeposit and stay of recovery of duty of Rs. 8,06,615/- confirmed on 74 MTs Rin Concentrate Powder found short on 31.12.95 and penalty of amount equal to duty together with penalty of Rs. 1 lakh imposed upon the applicants herein, Ld. Counsel Shri MH Patil submits that that the show cause notice had raised total demand of little over Rs. 40 lakhs on the ground that the applicant had manufactured and clandestinely removed certain quantity of RCP without payment of duty. However the Commissioner has dropped the charge of clandestine removal of a major part of the demand but to still has chosen to confirm duty on 74 Mts, on the ground that this quantity has been clandestinely removed. He submits that on charge of clandestine removal has not been found to he established would equally apply to the charge covering 74 MTs. He further submits that since the assessees was converting RCP into fine powder, process loss in involved and 74 MTs on which duty has been demanded represents less than 1% of process loss while process loss of 1% is (sic). In these circumstances he prays that the predeposit requirement may be dispensed with pending the appeals.
3. Shri BB Sarkar Ld. DR draw the attention of the Bench to paragraph 18 of the impugned order wherein it is clearly brought out that satisfactory explanation could not be given by the applicants for the difference of 74 MTS on a comparison between he manufactured quantity and the raw material consumed and that the assesses had not maintained the records properly.
4. On careful consideration of the submission of both sides prima facie the applicants have made out a case for waiver on merits. In view of the finding of the Commissioner that the department has not discharged burden cast upon if on proving clandestine removal. Therefore predeposit of the duty and penalty amount is dispensed with the recovery thereof stayed pending the appeals.
(Pronounced in Court)