Custom, Excise & Service Tax Tribunal
Cce, Kanpur vs M/S. Ambica Poly Tubes on 10 December, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Excise Appeal No.2756 of 2007-SM Branch
[Arising out of Order-in-Appeal No.296-CE/APPL/KNP/2007 dated 21.08.2007 passed by the Commissioner of Central Excise (Appeals), Kanpur]
Date of Hearing/ Decision:10.12.2009
For approval and signature:
Mr. M. Veeraiyan, Member (Technical)
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?
CCE, Kanpur Appellant
(Rep. by Shri V.K. Saxena, Jt. CDR)
Vs.
M/s. Ambica Poly Tubes .Respondent
(Rep. by Shri Atul Gupta, Co. Secretary) CORAM: Honble Mr. M. Veeraiyan, Member (Technical) Order No/Dated:10.12.2009 Per M. Veeraiyan:
This is an appeal filed by the Department against the order of the Commissioner (Appeals) modifying the order of the Original Authority by setting aside confiscation and reducing the penalty.
2. Heard both sides.
3. The relevant facts, in brief, are that the officers visited at respondents premises on 31.1.2006 and found the stock of finished goods viz. PVC Pipes as per record to be 56,805 Kgs. whereas the physical stock was found to be 68,905Kgs. As a result, 12100 Kgs. of excess stock valued Rs.2,42,200/- was found and seized as having not been accounted for in the records. The Panchnama also indicated that while calculating the recorded stock and excess stock, the production on the date of visit has been excluded. The Original Authority confiscated the excess goods weighing 12,100 Kgs and valued at Rs.2,42,000/- but allowed the same to be redeemed on payment of fine of Rs.62,500/-. He also imposed a penalty of Rs.39,527/- under Section 11 AC read with Rule 25 of the Central Excise Rules, 2002. On appeal by the party, the Commissioner (Appeals) set aside the order of confiscation and also reduced the penalty to Rs.5,000/-.
4. Ld. Jt. CDR submits that the respondent had substantial quantity of unaccounted stock and no proper accounts were maintained. The same would have been removed clandestinely but for the timely visit by the officers. Therefore, he submits that setting aside of confiscation was not proper and seeks the order of the Commissioner (Appeals) be set aside and the order of the Original Authority be restored.
5. Ld. Co. Secretary submits that the variation noticed in Panchnama was not based on actual weighment. He fairly concedes that the claim of non-weighment was taken by them belatedly after several months. He also claims that as rightly held by the Commissioner (Appeals), it was not a case of attempted clandestine removal and at the most, it was a case of irregular maintenance of accounts. He seeks upholding the order of the Commissioner (Appeals).
6. I have carefully considered the submissions from both sides. The excess stock found was 12100 Kgs. of PVC Pipes and compared to the stock as per record, which was 56805 kgs. The belated explanation offered for excess stock is not acceptable. It is a clear case of improper maintenance of accounts. However, the charge of attempted clandestine removal cannot be upheld as there was no evidence about such attempt and that there was no evidence of clandestine removal in the past relied upon. In a case involving substantial excess quantity, clearly a failure to maintain proper accounts is established and the confiscation of unaccounted goods require to be upheld. Therefore, the order of the Commissioner in setting aside the confiscation appears to be not legal and proper. At the same time, it is not a case of clandestine removal and provisions of Section 11 AC are not attracted.
7. Taking the entire facts and circumstances of the case into account, the order of the Commissioner (Appeals) is set aside and the order of the Original Authority is restored. While upholding the confiscation of the goods, the redemption fine is reduced from Rs.62,500/- to Rs.25,000/-. The penalty imposed amounting to Rs.39,527/- under Section 11 AC read with Rule 25 of the Central Excise Rules, 2002 is converted into penalty of Rs.5,000/- under Rule 27 of the Central Excise Rules, 2002.
8. The appeal is disposed of in the above terms.
Order dictated & pronounced in open court on 10.12.2009.
( M. Veeraiyan ) Member (Technical) Ckp.
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