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TMI Blog2014 (6) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounted for, appellant should have come out with clean hands to prove the weight of wrappers cleared. But they have chosen a way to avoid such disclosure - duty stand confirmed along with confirmation of interest against the respondents. However, penalty is reduced to 25% of duty if the duty confirmed is deposited within 30 days of receipt of final order - Decided partly in favour of assessee. - Central Excise appeal No. 2934/2005 - FINAL ORDER NO. 56624/2013 - Dated:- 10-6-2013 - D.N. Panda And Rakesh Kumar, JJ. For the Appellant : None For the Respondent : Ms. Sweta Bector, A.R. 1. None present for the appellant , nor is there any application for adjournment. At the prima facie stage of hearing interim application Tribunal , observed as under: The demand was confirmed after denying the credit in respect of defective Rods/Rounds and rejected Iron Steel Bars which was received by the appellant under the invoice of First stage dealer on the ground that corresponding invoices of the Revenue and Shri AR Madhav Rao and Shri R. K .Hasija, learned Advocates appearing for the respondents. 2. As per facts on record, the respondents are engaged in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 under Rule 173 - B of the Central Excise Rules, 1944 it was clearly stated that value of wrapper paper is included in the value of finished goods cleared by them and that Shri Bhupinder Singh, Managing Director of the appellant's company had also clarified in his statement that value of wrapper paper was included in the value of finished goods. The appellant had also contended that the finished goods are wrapped/packed in Wrapper Paper before being entered in their daily stock account register. I find that the Adjudicating Authority did not consider these submissions and confirmed demand against the appellants and imposed penalty on them on the basis of statement of Shri Bhupinder Singh, Managing Director, wherein he had stated weight of the wrapper paper was not included/mentioned in the invoice in the weight of goods. The appellant have pleaded that the statement of Shri Bhupinder Singh, Managing Director has been misconstrued. In this regard, I find that as discussed in the impugned O I O Shri Bhupinder Singh, Managing Director had clarified in his statement that they were changing value of goods inclusive of wrapper. I find force in the above arguments of t he appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weight shown in the invoice is of the goods only and weight of wrapper is not included/mentioned. That this practice was adopted by them as are charging value of goods inclusive of wrapper and the value mentioned this fact in their classification declaration also. That they are of the opinion that as they are using wrapper captively for packing of their final product duty is not leviable on the wrapper. He admitted their fault and pleaded that it was unintentional. 5. As is seen from the above statement, the same is to the effect that the total value charged by them from their client is inclusive of wrapper but with reference to the weight, for the purpose clarifying, he stated that the weight of the wrapper is not included/mentioned in the invoice. This cannot be held to be accepted fact that the wrapper's weight is not included in the weight of the paper. Otherwise also, we find that there is no dispute or rebuttal to the fact that the final entry in the record is made after the packing is done and as such, is inclusive of weight of wrapper. As such, we do not find any infirmity in the impugned order of the Commissioner (Appeals), the Revenue's appeal is rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has been manufactured and cleared. They support this argument by the additional argument that they have not billed any money separately for the packing material and the fact that the value of the packing material was included in the value of final products billed and sold was declared to the department. 11. I am not able to agree with the argument t because in the ordinary course of selling finished products nobody bills separately for packing except in the case of special commodities (glass for example) or special packing. There is nothing special about this commodity. So nothing can be read into t he fact that there was no separate amount billed for packing material. Secondly in the matter of material sold also invoices are issued indicating the quantity of material described in the invoice. By no stretch of arguments it can be considered that when the appellants were billing for 100 kgs of Duplex Board they meant 99.5 Kgs of Duplex Board and 0.5 Kgs of packing paper (figures assumed for illustration). This position was admitted by the Managing Directors of the respective company during investigation stage. So this is just an argument for argument sake. The invoices issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.14 of the Notification No.6/2002-CE dated 01.03.2002 Notification No. 6/2001- CE dated 01.03.2001 for the material periods under scrutiny. 14. Contrary to the above conclusion, Id. Technical Member examining the facts in para 8 of his order and also examining the statement recorded from Bhu pinder Singh Sethi, Managing Director of B.K. Kraft Limited and similar statement from Shri Kulbir Singh, Managing Director of M/s. AST Paper Mills Limited noticed that weight of the wrapper was not taken into consideration by the appellants to de termine total clearance of the paper and paper board during the respective financial years. With the further observation in para 10 11 of the order, Id. Technical Member came to the conclusion that the wrappers were dutiable being not included in the clearance of the relevant period. He was of opinion that the adjudication order to sustain without the appellate order having foundation. Reverse was the decision recorded by Id. Judicial Member holding that the order passed by Id. Commissioner shall sustain. 15. The difference in conclusion of both the Members gave rise to reference of the following question: Whether it is to be conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sympathy on the plea of invoice value which is altogether irrelevant when weight of wrapper was moot question. 19. Heard both sides and also perused the relevant documents. 20. It is a crystal clear case that the appellants have not disclosed gross weight and net weight in respect of each packet of the paper in any of the documents occasioning clearance during material period. Normally when a container contains contents, the gross weight and net weight are exhibited on the container. In the present reference weight of contents and container was not exhibited conspicuously. Weights and Measures Act has adopted the rationale of gross weight and net weight for cons umer protection and declaration of MRP. This is to save the consumer from exploitation. 21. Record reveals that Id. Commissioner (Appeals) only dealt with the clarification aspect of the statement recorded from the Managing Directors of the Appellants. He has ignored the substantial and material part of the statement recorded by investigation which was valuable piece of evidence in law showing that the invoice only contained the weight of the contents but not the wrapper. This practice was a dopted by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re excisable and to be accounted for, appellant should have come out with clean hands to prove the weight of wrappers cleared. But they have chosen a way to avoid such disclosure. For the reasoning given by the Id. Technical Member in his order and also for the material facts and evidence noticed above as well as discussions made, agreement with the decision of learned Technical Member is warranted. He has rationally and rightly opined that adjudication order should be restored to serve the interest of justice. Accordingly his opinion and conclusion deserves to be upheld. Both the Reference is answered accordingly against assessee and in favour of Revenue. 23. Registry is directed to place this record with the order passed today before the appropriate bench for passing appropriate order. [Dictated Pronounced in the open Court on 03.05.2013]. Final Order No. 24. In view of the majority order, the impugned order of Commissioner (Appeals) is set aside and duty stand confirmed along with confirmation of interest against the respondents. However, penalty is reduced to 25% of duty if the duty confirmed is deposited within 30 days of receipt of final order. Revenue's app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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