2004 (10) TMI 230 - AT - Central Excise

Summary

Issues:
- Whether duty of excise is payable on extra quantity of carbon black filled in bags cleared by the appellants and if penalty is imposable.

Analysis:
The judgment revolves around three appeals filed by M/s. Oriental Carbon & Chemicals Ltd. and others concerning the payment of excise duty on excess carbon black filled in bags cleared by them. The appellants argued that the additional quantity was to prevent complaints of short supply and not for clandestine removal. The Commissioner confirmed the duty demand and penalty, which was upheld by the Tribunal in an earlier order but remanded for fresh adjudication. The appellants contended that the excess quantity was for packing material and not carbon black, citing trade practices. However, the Commissioner's order relied on reports not provided to the appellants, leading to a dispute.

The learned Advocate cited legal precedents to argue that duty should be linked to value and no excess amount was charged for the extra carbon black supplied. The learned SDR countered, emphasizing that duty is payable upon clearance of goods, regardless of consideration received. The Tribunal's earlier findings confirmed the excess quantity was carbon black and not packing material, a conclusion not challenged by the appellants, leading to the current impugned order. The SDR highlighted reports indicating no trade practice of overfilling bags, supporting the duty demand.

The Tribunal's detailed analysis considered the remand order, trade practices, and absence of evidence supporting the appellants' claims. The appellants failed to demonstrate a trade practice of overfilling bags specific to carbon black, crucial for their case. Legal precedents were cited, but the duty of excise is levied on manufacture, necessitating payment upon clearance. Consequently, the demand for duty was upheld, and a penalty imposed on the appellant company, albeit reduced. No penalty was imposed on the other appellants due to lack of mens rea. The judgment allowed one appeal partly and set aside penalties on specific individuals, concluding the case on excise duty and penalty issues.