9911796707
TMI Blog2002 (10) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants No. 1 and 2, by the Commissioner, as detailed in the order itself. 3. The facts giving rise to these appeals may briefly be stated as under : 4. The appellant No. 1 is a Company engaged in the manufacture of Kerosene Wick Stoves (Brand Nutan) under the Licence granted by the Indian Oil Corporation, as per the specifications furnished to it under the agreement dated 24-6-88 by the said Oil Corporation. The Company as per the conditions of the agreement could not clear parts of the stove as such for home consumption. The stoves were exempt from duty during the disputed period as per the Notification 181/88, dated 13-5-88 from the payment of Central Excise duty. Even the burners were also exempt vide Notification No. 41/94-C.E., dated 1-3-94. However, duty was payable during the disputed period on the parts of the stoves @ 15% adv. On 25-8-94, Central Excise Officers visited the factory premises of appellant No. 1 and seized certain goods lying therein and also recorded statements of representatives of the Company. The Company initially did not pay any amount on the parts captively consumed by them in the manufacture of the stoves under the belief that the parts were not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt has been rightly affirmed by the adjudicating authority against the appellants. 8. Learned Counsel has mainly contested that Modvat credit available to the appellants on those parts had not been allowed by the adjudicating authority, while in the earlier order dated 22-12-97 before remand of the case by the Tribunal to the adjudicating authority, Modvat credit was allowed to them. The adjudicating authority in the impugned order, according to the Counsel has not referred to the Modvat credit claim of the appellants. The Modvat credit earlier allowed by the adjudicating authority, should be allowed to the appellants. We have gone through the record and in our view, the contention of the learned Counsel deserves to be accepted. The perusal of the record shows that the adjudicating authority vide order dated 22-12-97, while confirming the duty demand of this very amount of Rs. 11,26,487/- also allowed the Modvat credit to the appellants. That order was no doubt challenged by the appellants before the Tribunal, but only on the ground that the parts were not marketable and as such no duty could be charged in respect thereof. The Revenue in that appeal before the Tribunal did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants deducted administrative and selling expenses wrongly and those expenses were also shown higher than the actual expenses incurred. But we find that the appellants had submitted two reports for working the valuation/dutiable stove parts manufactured and captively used by them in the production of the final products (stoves). One report was prepared by the Chartered Accountant and the other by the Cost Accountant, M/s. K.G. Mantri Co. No doubt there was a difference in the price worked out by the CA and the Cost Accountant reports and this fact was not denied by the Cost Accountant also. But the adjudicating authority should have accepted the Cost Accountant s report wherein the assessable value shown was on a higher side, than the one worked out by the CA, especially when no evidence to contradict or falsify the report of the Cost Accountant had been brought on record by the Department. The differential duty according to the report of the Cost Accountant, comes to Rs. 10,96,298/- as per the details given by him in the report (referred to pages 172 to 175). Therefore, duty amount to that extent could only be affirmed against the appellants and not more than that. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stoves as such or stoves in which those parts were used by the appellants, during the disputed period. The plea of the appellants that there was a wastage while using the sheets, had not been taken note of by the adjudicating authority. They had given details of the sales of the asbestos scrap in their reply (referred at pages 311-315). But those had also been not considered. Their intimation to the Superintendent/Assistant Commissioner regarding destruction of asbestos sheets on account of fire which broke out in their factory, had also been ignored without any justification. The Cost Accountant in his Certificate had certified the correct position after taking into account the factual position. The mere entries, in the resumed registers which were allegedly maintained by the Supervisor and labourers could not be relied upon without corroborative evidence from any other tangible evidence, in view of the ratio of the law laid down by the Tribunal in CCE, Meerut v. Raman Ispat (P) Ltd. - 2000 (121) E.L.T. 46, Beco Industries Ltd. v. CCE - 2000 (121) E.L.T. 650, Deepak Tandon v. CCE - 2000 (126) E.L.T. 1079 and Sharma Chemicals v CCE - 2001 (130) E.L.T. 271 (T-Kol.). The charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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