2015 (12) TMI 1207

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....pondent No.1 (Commissioner of Central Excise, Shillong), which was communicated vide C. No. IV-10/02/TECH/SH/2011/22047-50 dated 31.12.2014, and to direct respondent No. 1, the Commissioner of Central Excise, Shillong to decide petitioner's claim afresh for fixation of Special Rate which should represent the actual value addition of its product Ferro Silicon for the financial year 2011-12 in terms of Para 2.1 of the Notification No. 17/2008- Central Excise dated 27.03.2008, as amended by the Notification No. 31/2008-Central Excise dated 10.06.2008. It is the case of the petitioner that the claim for fixation of Special Rate in respect of its product, namely, Ferro Silicon for the year 2011-12 representing the actual value addition was submi....

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....er company were derived from natural sources, there was no question of payment of excise duty at the time of purchase of raw materials. Therefore, there was no credit available on that count. It is also the submission of learned counsel, that when the goods after production were to be moved as finished goods, the petitioner company had paid 100% excise duty. However, as per the notification of 2008, only a claim of 39% exemption was maintainable. Thus, when the company made an application with certificate of statutory auditor in favour of its claim for higher exemption to the Commissioner of Customs and Central Excise, the application did not find favour. The application of the petitioner company did not evoke a favourable response particul....

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....ue, value of raw materials consumed, opening and closing stock were already available with the Respondent Authorities as mentioned above." Learned counsel for the respondent on the other hand, referred to para 12 of the affidavit-in-opposition on behalf of respondents No. 1, 2 & 3. The said paragraph is also reproduced as: "12. That as regard statement made in paragraph 9 it is stated that as per Chapter - 6 of CBEC‟s Central Excise Manual, it is clearly stated that „.....while framing the Central Excise Rule 2002 (hereinafter referred to as the said Rules), CENVAT Credit Rules, 2004 and other Rules issued under Central Excise Act, 1944, the Government has continued with the policy of relying on the private records o....

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....ble with the petitioner only is mandatory for taking into consideration for fixation of special rate. As stated by the petitioner that statutory records namely RG-1 showing daily production and clearance, opening and closing of the final product, RG-23 registers and input/raw materials registers reflecting purchase and consumption of inputs/raw materials/packaging materials etc. for production, central excise invoices sale and removal of the excisable commodity were always made available to the department by the petitioner on a monthly basis mandatorily and already available with the respondent authorities is baseless/not acceptable. In RG-1 only Quantity of production and quantity of opening & closing stock is reflected there, but no entry....

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.... fixation of Special Rate as per the Notification No. 17/2008-Central Excise dated 27.03.2008, as amended, and shifting the burden unlawfully to make the petitioner responsible for such failure. As such, the respondent authority‟s findings that verification could not be done due to non-availability of documents do not sustain. (ii) That this is an absurd situation where it is baselessly alleged that the verification could not be caused by the Department whereas para 4 of the impugned Order dated 24.12.2014 clearly mentions that the verification was done by the Shillong Central Excise Division and also submitted report to the competent authority. (iii) That it is transpired from para 6 of the impugned order of the Res....