Custom, Excise & Service Tax Tribunal
M/S. Rs Infra Transmission Ltd vs C.C.E., Jaipur-I on 14 March, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 14.03.2014
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/2884/2011-EX[SM]
[Arising out of Order-in-Appeal No.262-263(DKV)CE/JPR-I/2011, dated 07.10.2011 passed by C.C.E.(Appeals), Jaipur-I]
M/s. RS Infra Transmission Ltd. Appellants
Vs.
C.C.E., Jaipur-I Respondents
Appearance Shri Bipin Garg, Advocate - for the Appellants Shri MS Negi, DR - for the Respondents CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No.51188, dated 14.03.2014 Per Honble Mrs. Archana Wadhwa :
After hearing both the sides, I find that the appellants are engaged in the manufacture of MS Angles, channels, structural materials, rectangular bars, joints, etc. Their factory was visited by the Central Excise officers on 24.02.2009, who conducted various checks and verifications. As a result, shortage in the final product was detected. On the above basis, proceedings were initiated, resulting in confirmation of demand of duty of Rs.2,70,121/- (Rupees two lakh seventy thousand one hundred and twenty one only) along with imposition of penalty.
2. On appeal, Commissioner (Appeals) upheld the confirmation of demand, but set aside the penalty by observing as under:-
16. As regards penalty I find that in the instant case the appellant-1 has no where admitted the clandestine removal thereof as such. Moreover, the burden to prove the clandestine removal of the impugned finished goods is on the Department which has not been discharged by way of collecting supporting evidences to prove the impugned short found finished goods were clandestinely cleared. I further find that Hon'ble High Court of Punjab and Haryana in the case of CCE Vs Sigma, Steel Tubes 2007(218)ELT657(P&H) and Hon'ble Tribunal in a case of CCE, Kanpur Vs. Raghunath International Ltd. and Others reported in 2009 (166)ECR0124 has held that mere shortage of finished goods cannot be equated with clandestine clearance in absence of other evidence and in such a situation penalty under Section 11-AC of the Central Excise Act, 1944 is not sustainable. Further Hon'ble Supreme Court of India in the cases of Campher Drugs & Linimantes-1989(40)ELT276(SC), CCE, Mumbai Vs Bell Granite 2006(198)ELT61(SC) and Cores India Vs CCE-2004(174)ELT7(SC) has stated that positive evidence is required to be produced by the Department before the appellant could be met with the penalty under Section 11-AC of the Act. Similar findings have been given by my predecessor in the case of M/s. KEC Industries Ltd. Bhiwadi vide Order-in-Appeal No.331(DK)CE/JPR-I/2009 dated 17.11.2009. In absence of any evidence of clandestine clearances of short found finished goods, I following the above said orders of the higher appellate authorities set aside the impugned order imposing penalty under Section 11-AC of Central Excise Act, 1944 on the appellant-1.
3. As such, it is clear from the above that the Commissioner (Appeals) has given a clear finding that there are no clandestine removal. However, he has applied the said finding only for the purpose of penalty, whereas the same can be equally applicable for the purpose of confirmation of demand on the findings of clandestine removal. Accordingly, I set aside the demand confirmed against the appellants and allow the appeal with consequential relief to the appellants.
(Dictated and pronounced in the Open Court) (Archana Wadhwa) Member (Judicial) SSK -3-