Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise & S. Tax, ... vs Akshay Roll Mill Pvt. Ltd on 22 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. E/71056/2013
(Arising out of Order-in-original No. 98/RAN/2013 dated 10/06/2013 passed by the Commissioner of Customs, Central Excise & S. Tax (Appeals), Ranchi.
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Commissioner of Central Excise & S. Tax, Ranchi.
Applicant (s)/Appellant (s)
Vs.
Akshay Roll Mill Pvt. Ltd
Respondent (s)
Appearance:
Shri K. Choudhari, Suptd (AR) for the Appellant (s) Shri B. N. Chattopadhyay, Consultant for the Revenue (s) CORAM:
Honble Shri H.K.Thakur, Member(Technical) Date of Hearing/Decision: 22.08.2016 ORDER No.FO/A/75875/16 Per Shri H.K.Thakur This appeal has been filed by the Revenue against OIA No. 98/RAN/2013 dt 10/6/2013 passed by Commissioner (Appeals), Ranchi as first appellate authority.
2. Sh. K. Choudhari Suptd (AR) appearing on behalf of the Revenue argued that appellant is the manufacturer of M. S. Bars by hot rolling of M. S. Ingots. That hot rolling leads to generation of mill scale waste which is normally 1 to 3% of the weight of the finished product. That appellant has claimed such a loss due to mill scale generation as 10%. It is the case of the Learned AR That generation of 10% mill scale, against a normal generation of 1-3% of mill scale, is not justified at all and the material to the extent of 8% excess claim has been used for manufacture of M.S. Bars which have been clearly / removed clandestinely.
3. Sh. B. N. Chattopadhyay (Consultant) appearing on behalf of the Respondent argued that there is no evidence at all as to why 10% mill scale loss is not acceptable when the same has been brought to the notice of Ministry of Steel & no objection to Respondents claim is raised by the said Ministry. That order passed by first appellate authority is justified & correct interpretation of loss.
4. Heard both sides & perused the case records. The issue involved is whether mill scale generation of 10% claimed by the appellant is justified. It is observed from the case records that no scientific literature / data has been relied upon by the Revenue as to what should be a normal range for generation of mill scale in a hot rolling process. No experiment has been done by the Revenue in support of their case that mill scale generation should be in the range of 1 to 3% only. There is no variation in the raw material stock and also no seizure of clandestinely removed finished goods. On the contrary Respondent has intimated to the Project Management Cell UNDP/GEP Project (Steel), GOI, Ministry of Steel that they are incurring 10% loss. In the absence of any evidence to the contrary it can not be said that mill scale generation will always be 1 to 3% in the hot rolling processes. It has thus been rightly observed by the first appellate authority in Para 6 of the OIA dt 10/6/13 that onus to prove clandestine manufacture & clearances of finished goods lies with the department. Clandestine removal can not be upheld on the basis of presumptions, assumptions & surmises.
5. In view of the above observations appeal filed by the Revenue is rejected.
(Operative part of the order already pronounced in the court.) (H.K.THAKUR) MEMBER (TECHNICAL) T.K 3 Appeal No.E/71056/2013