Custom, Excise & Service Tax Tribunal
M/S. Real Iron Co. (P) Ltd vs Cce, Kanpur on 3 September, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:03.09.2010
Excise Appeal No.2098 of 2008-SM (BR)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
,,,
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?
[Arising out of Order-in-Appeal No.226-CE/APPL/KNP/2008 dated 30.05.2008 passed by the Commissioner of Central Excise (Appeals), Kanpur].
M/s. Real Iron Co. (P) Ltd. Appellant
Vs.
CCE, Kanpur Respondent
Appearance: Rep. by Shri A.K. Dixit, Advocate on behalf of the appellants. Rep. by Shri K.P. Singh, SDR on behalf of the respondent/Department. CORAM: Honble Shri Ashok Jindal, Member (Judicial) Order No/Dated:03.09.2010 Per Ashok Jindal:
The appellant has filed this appeal against the order of the Commissioner (Appeals) confirming demand on second visit by the preventive officers at the premises of the appellants on the ground of shortages of inputs detected by the preventive officers.
2. The facts of the case are that on 23rd September, 2005, the factory of the appellants was visited by the preventive officer and a shortage of 31.000 M.T. of Sponge Iron (input) and 4.080 M.T. of finished goods were detected and a show cause notice was issued to the appellants for those shortages. The same was adjudicated. The duty demand was confirmed, which was admitted by the appellant and paid the dues accordingly. Later on, another visit was done at the premises of the appellant on 21.12.2005 by the preventive officers and again a shortage of 31.060 M.T. of Sponge Iron was detected and further, a show cause notice was issued and the same was adjudicated. Demand was confirmed. Aggrieved from the said confirmation of the demand, the appellant is before me.
3. Ld. Advocate for the appellant submitted that they have admitted the shortages of inputs at the time of visit of the preventive officers first time in their factory on 2.9.2005 and paid the duty on such shortages. The same shortage was continued in their stock till the second visit was done on 21.12.2005. In fact, they have already paid the duty, subsequent demand is not sustainable on that ground. He further submitted that they have raised this contention before the lower appellate authorities but the same was not considered and demand was confirmed.
4. On the other hand, ld. DR submitted that on second visit also, the shortages were found and the same was admitted by the appellant. Moreover, the appellant failed to take the defence that the shortages of inputs is continuing since September, 2005 till 21.12.2005 at the time of second visit before the adjudicating authority. Hence the defence at this stage taken is not maintainable. Hence the impugned order is to be confirmed.
5. Heard both sides.
6. On consideration of submissions from both the sides, I find that the second visit was done by the preventive officers within three months of the first visit till then, the shortages found at the first visit was not confirmed against the appellant and the lower appellate authority although took notice of the same but rejected the claim of the appellant on the ground that the defence was not taken by the appellant before the adjudicating authority. He further noted that the appellant has not given any evidence in support of their claim.
7. Considering the findings given by the lower appellate authority, I find that the matter needs examination at the end of the adjudicating authority in respect of the shortages found at the second visit, which were the same as at the time of first visit. If the case is of that nature then demand is not sustainable. But this fact is to be examined by the adjudicating authority. In these circumstances, I have no option except to remand the matter to the original adjudicating authority to ascertain the fact whether the shortages found during the second visit were the same as were found at the time of first visit or not. Accordingly, the matter is remanded back to the original adjudicating authority to decide the issue after giving a reasonable opportunity to the appellants to file documents in support of their claim. In these terms, the appeal is allowed by way of remand.
(Ashok Jindal) Member (Judicial) Ckp.