Custom, Excise & Service Tax Tribunal
Cce, Chennai vs M/S. Honeywell Electrical Devices And on 6 July, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/35/2010
(Arising out of Order-in-Appeal No. 62/2009 (M-IV) dated 16.10.2009 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Ms. Jyoti Balasundaram, Vice-President
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 the Member wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Chennai Appellant
Vs.
M/s. Honeywell Electrical Devices and
Systems India Ltd. Respondents
Appearance Shri C. Dhanasekaran, SDR for the Appellant Shri Joseph Prabhakar, Advocate for the Respondents CORAM Honble Ms. Jyoti Balasundaram, Vice-President Date of Hearing: 06.07.2010 Date of Decision: 06.07.2010 Final Order No. ____________ The Revenue is in appeal against the order of the Commissioner (Appeals) who has set aside the duty demand of Rs.81,058/- on finished goods found short together with interest, setting aside of direction for reversal of CENVAT credit irregularly availed on the raw materials and components found short, setting aside reversal of CENVAT credit irregularly availed on raw materials contained in the intermediate goods found short, together with interest and setting aside of penalty imposed on the assessee herein.
2. I have heard both sides. The case has been made out on the strength of the statement in the Annual Report for the year 2005 2006 of the assessee-company who is a manufacturer of switches, sockets and parts of switches, that there is a discrepancy between physical stock and goods stock and the discrepancy is considered to be material and accordingly an amount of Rs.29,10,650/- (net debit) has been properly adjusted in the books of account.
3. The plea of the assessees that the show-cause notice does not allege any clandestine removal and therefore no duty can be demanded on clandestine removal, is not tenable for the reason that the notice does allege that finished goods found short in the assessees factory are manufactured goods on which the assessee has not paid any duty, as the same have not been accounted for in the clearances made from the factory. The next submission is that the demand is barred by limitation. This plea is also not found to be acceptable for the reason that in no case of clandestine removal can the plea of time bar be advanced. As regards the finding that excesses have not been taken into account while arriving at shortages, I find that this has also been dealt with by the authorities below. The plea for setting aside of the penalty is also not acceded to, for the reason that I am upholding the charge of clandestine removal.
4. In the light of the Tribunals decision in CCE, Chennai Vs. Composite Boards (P) Ltd. 2009 (244) ELT 561 holding that mismatch in value of clearances as shown in the balance sheet and value of clearances shown in Central Excise returns itself is sufficient to make out a case of clandestine clearance, I set aside the impugned order and allow the appeal of the Revenue.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) Vice-President Rex ??
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