TaxTMI 
TaxTMI 
2014 (9) TMI 660
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.... weighment slips. The weighment slips showed higher quantity of the goods while the invoices were issued for lower quantity. From this it appeared that the respondent while paying duty on the lower quantity, had cleared higher quantity and, as such, there is clearance of certain quantity of CPC without payment of duty. From this, it appeared 27.527 M.T. of CPC had been cleared clandestinely without payment of duty during the period from June 1991 to October 1993 ; (2) CPC is cleared in 50 kg. packs and sometimes in 100 kg. packs. For 50 kg. packs either jute bags are used or plastic bags are used and for this purpose a record of the purchase, consumption, wastage and closing balance of the jute bags and plastic bags is maintained separately. On scrutiny of consumption of the bags, it appeared that the consumption of bags during the period of dispute was much more than the bags which would have been consumed on the basis of the clearances recorded in the RG-1 register. The contention of the respondent that there was wastage of 6496 bags, 1740 bags had been used for packing of RPC and 1869 bags were available in the factory did not appear to be acceptable to the investigating offi....
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....any. 1.3 The show cause notice was adjudicated by the Commissioner, Central Excise, Allahabad vide order-in-original dated 31/10/2000 by which the Commissioner confirmed the entire demand in toto and beside this, while imposed penalty of Rs. 20,00,000/- on the respondent under Rule 173Q (1) penalty of Rs. 5,00,000/- each under Rule 209A was imposed on Shri Amitav Chaudhary and Shri G.K. Rai. 1.4 The respondent filed appeals to the Tribunal against the above order of the Commissioner and the Tribunal vide final order dated 06/12/07 remanded the matter to the Commissioner for denovo adjudication as per the directions given in the order. One of the directions given by the Tribunal was to permit cross-examination of Shri M.M. Khan and Shri A.K. Mishra whose statement had been relied upon in support of the allegation of clandestine removal of CPC by the respondent. 1.5 The matter was adjudicated denovo by the Commissioner of Central Excise vide order-in-original dated 29/12/03 by which the Commissioner confirmed the duty demand of Rs. 3,37,933/- on 154 M.T. of CPC alleged to have been cleared in the garb of RPC to CPPL and allowed adjustment of reversal of Rs. 1,59,584/- equal ....
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....mmissioner's findings that the difference could be on account of weight of the empty bags and that the difference is to the tune of 1% to 2% is incorrect, that the difference between the weight as mentioned in the invoices, and as mentioned in the corresponding weighment slips is to the extent of 4% to 5% which cannot be on account of weight of the empty bags. He also pointed out that during the period from June 1991 to October 1993 mainly the plastic bags has been used and very small quantity of jute bags had been used, therefore, the respondents plea that weight difference may be due to the jute bags absorbing the moisture would not be correct. He pointed out that in some cases the difference works out to even 54% which is not explained by the explanation given by the respondent. He, therefore, pleaded that the difference between the invoices quantity and the quantity mentioned in corresponding weighment slips, has been cleared clandestinely without payment of duty and the Commissioner has erred in accepting the respondents explanation and his order dropping the duty demand on this quantity is not correct. With regard to the duty demand on 715.016 M.T. of CPC, based on the disc....
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....e difference between the quantity mentioned in the invoices and the quantity mentioned in the respective weighment slips, he pleaded that the difference could be on account of weight of the empty bags. He also pleaded that there is no evidence of any amount being received by the respondent from their customers over and above the invoice price and accordingly merely on the basis of difference between the invoice weight and weight mentioned in the weighment slips the duty demand on the difference cannot be confirmed. 4.2 With regard to the duty demand on 715.016 M.T. of CPC based on the alleged discrepancies in the amount of consumption of packing bags, he pleaded that out of 37,659 bags of 50 kg. issued during the period of dispute 1869 bags were available at the time of officers visit and while 6496 bags had gone waste, 1740 bags had been used for packing of RPC and accordingly, he pleaded that the consumption of bags is in accordance with the production recorded in the RG-1 register and, as such, there is no discrepancy. He emphasized that in course of filing of bags, there would also be wastage and this wastage cannot be ignored and similarly when it is a fact that RPC as suc....
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....he quantity of jute bags used were negligible - 2450 bags as against 35203 plastic bags used, there is no possibility of the weight increase on account of absorption of moisture by the jute bags which are hydroscopic in nature. As mentioned in para 6.2.2 of the Boards review order in some cases, the difference works out to 17.2%, 54% and 34.8% which is not possible. It is seen that the points raised in para 6.2.2 of the Departments review order have not been examined by the Commissioner. Therefore, in my view on this point the matter has to be remanded to the Commissioner for denovo adjudication. 7. The duty demand on 715.016 M.T. of CPC alleged to have been cleared during May 1992 to June 1993 period without payment of duty is based on the discrepancies in the issue of packing bags. According to the Department during period from May 1992 to December 1992, a total of 37,659 bags of 50 kg. capacity were issued in which 1909.5 M.T. of CPC was packed and cleared, while as per the RG-1 register only 1376 M.T. of CPC was recorded as cleared. However, the explanation of the appellant is that during the above period 37659 bags of 50 kg. capacity and 266 bags of 100 kg. capacity had b....
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....Larger Bench of the Tribunal in the case of CCE, Vadodara vs. Asia Brown Boveri Ltd. (supra) has held when modvated inputs are cleared as such, only an amount equal to the Modvat credit originally taken was required to be paid. In view of this, the Commissioners finding on this point is correct. 9. As regards the question of penalty under Rule 209A of Central Excise Rules, 1944 on Shri Amitav Chaudhary, Director and Shri G.K. Rai, General Manager of the respondent company, while the Commissioner has dropped the penal proceedings against these two persons, the Department is of the view that these persons were accountable and responsible to the respondent company at the time when evasion took place and the evasion involving the respondent company and their sister unit would not be possible without the direct involvement of three two persons and, therefore, the Commissioner has wrongly dropped the proceedings against them. The question of imposition of penalty on them under Rule 209A of Central Excise Rules would arise only if the duty demand based on difference between the invoice quantity and the quantity mentioned in the weighment slip and the duty demand based on the discrepan....