Custom, Excise & Service Tax Tribunal
Virat Crane Agri-Tech Limited vs The Commissioner Of Central Excise on 7 September, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Central Excise Appeal No: E/801/2007 (Arising out of Order-in-Appeal No. 35/2007 (G)CE dated 01.08.2007 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Guntur) 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 their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? Virat Crane Agri-Tech Limited Appellant Vs. The Commissioner of Central Excise Guntur Respondent
Appearance Shri V.J. Sankaram, Advocate, for the Appellant Smt. Sudha Koka, SDR, for the Respondent CORAM HONBLE MR. JUSTICE R.M.S. KHANDEPARKAR, PRESIDENT HONBLE MR. P. KARTHIKEYAN, MEMBER (TECHNICAL) Date of Hearing: 07.09.2010 Date of decision:07.09.2010 FINAL ORDER No._______________________2010 Per Shri Justice R.M.S. Khandeparkar(Oral) Heard the learned Advocate for the appellant and DR for the Respondent.
2. The present appeal arises from Order dated 01.08.2007 passed by the Commissioner (Appeals), Guntur. By the impugned order, the Commissioner (Appeals) had partly allowed the appeal filed by the appellant against the order of the Adjudicating Authority, while confirming the duty in relation to 198 drums along with interest thereon and the penalty imposed accordingly.
3. The appellants are the manufacturer of Fruit Pulp/Concentrate classifiable under Chapter Sub-Heading 2001.10 of the Central Excise Tariff Act, 1985 and are availing the benefit of 100% EOU scheme. The appellants shifted their factory from Berhampur, Orissa to Guntur, Andhra Pradesh. Consequently, they had received 739 drums/barrels of old finished goods of different varieties of fruit concentrate and pulp from their Berhampur warehouse during the period from June, 2003 to July, 2003, out of which 566 drums were found to have spoiled contents and not suitable for human consumption. The appellant, therefore, under the letter dated 28th July, 2003, sought permission for destruction of the said products and requested for drawing of test samples and laboratory report. The appellants also furnished analytical report of their own laboratory certifying the product to be unfit for human consumption. Subsequently, they informed about the need for destruction of 737 drums/barrels. Further, under the letter dated 13th August, 2004, they informed the Department that they had destroyed the damaged finished product contained in 935 drums valued at Rs. 72,44,937/-, which included 198 drums received by them in the month of April, 2004. Consequently, the proceedings were initiated for recovery of duty. The Adjudicating Authority viz. the Additional Commissioner, Guntur, by his order dated 13th January, 2006 while confirming the demand under Show Cause Notice dated 01.07.2005 held that the appellants were liable to pay the duty to the tune of Rs. 21,73,481/- and Education Cess of Rs. 43,470/- in relation to the fruit pulp/concentrate packed in 935 drums, which were claimed as destroyed by the appellant, along with interest and penalty of equal amount. Being dis-satisfied, the appellants filed an appeal before the Commissioner (Appeals) which came to be partly allowed under the impugned order dated 01.08.2007 as stated above.
4. While assailing the impugned order, the learned Advocate for the appellant submitted that once the fact that 935 drums, including 198 drums received in April 2004, were destroyed is confirmed and accepted by the authority, there was no justification for demanding the duty in relation to the contents of 198 drums. According to the learned Advocate, the very fact that the said drums were destroyed establishes the fact that the contents thereof were deteriorated and were not fit for human consumption and, therefore, the same were destroyed and therefore, there was no justification for confirmation of duty.
5. The learned DR on the other hand submitted that the appellants failed to produce any proof relating to the deterioration of the quality of the contents of 198 drums and, therefore, no fault can be found in the impugned order.
6. Undisputedly, the appellant had not informed about the need for destruction of 198 drums, which were received in April, 2004. Intimation regarding the need for destruction was restricted to 737 drums valued at Rs. 55,90,844/-. It was only after the destruction of 935 drums, the said fact was informed to the Department. In other words, prior to destruction of the contents of 198 drums, no opportunity was given to the Department to verify the quality of the contents of the product contained in the said 198 drums. This fact being undisputed and clearly revealed from the record, we find no infirmity in the impugned order confirming the demand in relation to the duty pertaining to the product contained in 198 drums.
7. For the reasons stated above, therefore, the appeal fails and is hereby dismissed.
(R.M.S. KHANDEPARKAR) President (P. KARTHIKEYAN) Member (T) /pr/