Custom, Excise & Service Tax Tribunal
C.C.E.&S.T., Ludhiana vs M/S. Anand Founders And Engineers on 7 February, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 07.02.2014
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No. E/56938/2013 -EX[SM]
[Arising out of Order-in-Appeal No.CCA/CHD/18/2012, dated 26.12.2012 passed by C.C.(Appeals), New Delhi]
C.C.E.&S.T., Ludhiana Appellants
Vs.
M/s. Anand Founders and Engineers Respondents
Appearance Shri UK Srivastava, DR - for the appellants Ms. Seema Jain, Advoate - for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No._50552__, dated 07.02.2014 Per Honble Mrs. Archana Wadhwa :
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. I have heard Shri UK Srivastava, Ld. Departmental Representative appearing for the Revenue and Ms. Seema Jain, Ld. Advocate representing the respondents.
2. As per facts on record, the respondents were engaged in the manufacture of CI pipes and fittings. Their factory was visited by Central Excise officers on 16.07.2008, who conducted various checks and verifications. Shri Kamal Kant, proprietor of the unit informed the visiting officers that as repair activity was going in their factory, the records were temporarily shifted to the adjoining building of their sister concern M/s. Adhunik Industrial Corporation.
3. As a result of stock taking, officers found shortages in the raw-materials as also in the final products involving duty of Rs.16,00,306/- (Rupees sixteen lakh three hundred and six only). The said shortages were arrived at after taking into account the receipts, production and dispatches from 04.06.2008 to till the date of visit of the officers as the respondents records were written upto 04.06.2008.
4. Subsequently, respondents addressed a letter dated 09.08.2008, to their jurisdictional central excise authority submitting that there was no shortages in as much as the stock in progress was not taken into account and the raw-materials lying on the site of the factory was also not weighed. However, no action was taken on the said letter of the assessee.
5. On the above basis, proceedings were initiated against them by way of issuance of Show Cause Notice dated 06.07.2009 proposing confirmation of demand of duty and imposition of penalty. The Show Cause Notice culminated into an order passed by the original adjudicating authority.
6. However, on appeal, Commissioner (Appeals) set aside the findings of the clandestine removal of the goods on the ground that the assessees records, which were admittedly lying in the next door, sister concern were not scrutinised; the stock position was clarified by the assessee vide their letter dated 08.08.2008, which has been rejected summarily as an after-thought without taking the verifications; that Shri Kamal Kant, in his statement had admitted only shortages and not the fact of clandestine removal; that there was virtually no evidence to reflect upon the clandestine activities in as much as the Revenue has not conducted further investigations so as to establish the identity of the buyers or the suppliers of the raw-materials or the transporters, etc. Hence, the present appeal by the Revenue.
7. The Revenue has again reiterated the same stand that as shortages were detected at the time of visit of the officers, which has to be held that the respondents had cleared their final product in a clandestine manner. Admittedly, there is no other evidence on record so as to relate to the clandestine activities of the assessee. The Commissioner (Appeals) has rightly relied upon the various decisions of the Tribunal including the decision in the case of Jai Timber Company Vs. CCE&C, Bhopal [2009 (234) ELT 457 (Tib.-All)] and has rightly concluded that mere shortages detected at the time of visit of the officers cannot ipso facto lead to the allegations and findings of clandestine removal.
8. I find no infirmity in the said view of the Commissioner (Appeals). Accordingly, the Revenues appeal is rejected.
(Archana Wadhwa) Member (Judicial) SSK -3-