9911796707
TMI Blog1999 (5) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... on dioxide, crown corks and bottles, M/s PEL indicates the sources from which M/s. Moon Beverages have to make the purchases. 2. Acting on an intelligence that M/s. Moon Beverages (hereinafter referred to as the assessees) were indulging in evasion of duty by resorting to suppression of production and clandestine removal, the officers of the Directorate General of Anti-Evasion, conducted searches of the assessees factory premises at Sahibabad, their Sales Depot and registered office at Delhi on 28-9-1993. They carried out verification of finished excisable goods and found certain shortages and excesses both in the factory and in the depot. They also found unaccounted cash amounting to ₹ 3,46,493/- in the sales depot and the excess goods and cash were seized under the reasonable belief that they were liable to confiscation. The officers also seized certain records relevant for the purpose of their enquiry and also recorded statements of various persons concerned with the production and clearance of excisable goods. During the course of investigation, it was found that the assessees were sending sales figures of beverages to M/s. PEL of Bombay and Delhi on monthly/weekly basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Inspectors) and imposed a penalty of ₹ 65 lakhs on the assessees. He has also ordered appropriation of ₹ 50,000/- by encashment of Fixed Deposit Receipt from the Punjab National Bank, Ghaziabad in lieu of confiscation. He dropped the duty demand raised on the basis of the difference in sales figures recorded in the assessees RGI register as compared to those reflected in the computer print out of M/s. PEL. The Revenue has filed Appeal No. E/1411 of 96-NB against the dropping of the duty demand of ₹ 4,72,51,048/- and the release of the seized goods including the cash; while the assessees have filed Appeal No. E/1606/96-NB against the confirmation of part of the duty demand as well as imposition of penalty. 4. We have heard Shri K.M. Mandal, learned Consultant for the Revenue and Shri M. Chandrasekharan, learned Sr. Advocate for the assessees and record our findings as under : E/A 1411/96 NB (Revenue's Appeal) The charge that M/s. Moon Beverages Ltd. had suppressed their production by clandestinely removing the same is based upon the computerised sheets showing the sales of aerated waters affected by various franchisees including the assessees. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iri and Shri Hegde appeared to suggest that PEL was directly receiving statistical information relating to sales from franchise bottlers in the form of Sales Manager Reports, the statements of Shri R. Srinivasan Iyer and Shri Ashish Sethi indicate that franchise bottlers used to supply monthly sales figures in the form of SMR to the respective District Franchise Managers who in turn used to send the figures on phone/fax to their Bombay office. M/s. MBL has denied furnishing of statistical data relating to aerated waters to PEL and have challenged the authenticity of the sales figures contained in the computerised sheets obtained from PEL. They have also contended that PEL never confirmed or cross checked the sales figures with MBL and have also relied upon the reply sent by Coolade Beverages (Unit of PEL) in which they have stated that ever since 1984 when their unit was set up, they had never sent any sales figures in writing. The Adjudicating authority has considered the various submissions and has held that it would not be correct to rely upon the figures in the computerised sheets as representing the correct figures of sales of aerated waters by MBL. He has noted that MBL agita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund to the said MBL of ₹ 4 lakhs already paid by them as their contribution towards advertisement charges allegedly based on their sales as contained in the computerised sheets. Further, the Department while issuing a show cause notice to the Parle International Limited vide Collector of Central Excise, Meerut's C. Number V(15) off/7Adj/ 4A/94/10266-70, dated 12-4-1994 has inter alia accepted that the bottlers contribution towards SAMS was based on estimated sales data and in case the payments towards SAMS are not made, the supplies of concentrate to such bottlers would be stopped or curtailed. This authority has also taken into account this position while deciding the matter of flow back of additional consideration from the franchise holders to PIL in the matter of valuation of concentrate under Section 4 of the Central Excises and Salt Act, 1944 vide order-in-original No. 8/Collr/95 issued under C No V(15)off/Adj/46/94/l 967-72, dated 25-1-1995 in respect of the said M/s PIL. (vi) Figures as shown in the RG-I register by M/s Coolade Beverages Ltd., Sahibabad, a unit of M/s. PEL whom show cause notice C. No. V(15)off/Adj/94/4549, dated 15-3-1994 has been issued in a simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity as contained in paras 133 and 134 that this quantity is not liable to confiscation. 11. Regarding seizure of ₹ 3,47,493/- we find that MBL has filed a certificate dated 14-6-1994 from M/s. Kamal & Co., Chartered Accountant according to which the above mentioned cash balance was existing in their books. For this reason, we hold that the currency seized cannot be taken as representing sales proceeds of non-duty paid aerated waters; we therefore, see no reason to interfere with the finding that this amount of cash is not liable to confiscation. In the Revenue's appeal, there is no challenge to the dropping of penal action against the directors of M/s. MBL and hence we are not called upon to record any finding thereon. In the result, we do not interfere with the Commissioner's action in dropping the duty demand based on computerised sheets and vacating the seizure of 5172 crates of aerated waters seized from depot and factory premises of M/s. MBL and accordingly reject the appeal of the Revenue. 12. A. No. E/1606/96-NB (Assessee's Appeal) The demand of ₹ 2,60,85,083.68 is based on the difference between the figures of non-alcoholic beverage bases (concentrates) suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our representative can visit our factory in whose presence we will drain off the concentrate. However in case we did not hear anything in next 10 days we will be finally draining of the concentrate on 8-1-1990 date. This is for your information and record. Thanking you, Yours faithfully, For MOON BEVERAGES LTD. (Director) To, The Superintendent, Central Excise, Range-TV Sahibabad. Ghaziabad. Subject : Wastage of Concentrate. Dear Sir, We are compelled to write this present letter in order to bring to your kind notice that about 980 units of concentrate received by us from Parle on payment of duty had become not worthy to be used for manufacturing of aerated water. On account of faulty refrigeration/cooling system because of which proper temperature was not maintained which is required for storing the concentrate, about 980 units have become totally useless and it has become in the form of jelly like substance. This fact was brought to our notice by the technical staff of Parle on their visit to our factory. On account of this loss of concentrate due to change in its characteristics we cannot further use this material and therefore same will have to be drained. Yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Range-IV. Sahibabad (U.P.) Sub : Drainage of Concentrate units during the year 1992-1993 and 1993-94 Sir, It is to bring to your kind notice that 685 units have become unusable on account of long storage and, therefore, same cannot now be used for the manufacture of aerated water we would like to drain off the said 685 units of concentrate for which you are requested to depute your officers to take note of the situation. However, we make it clear that in respect of these units, no Modvat credit has been availed of against the clearances of final goods effected by us. This is for your record and immediate action. Thanking you, Yours faithfully, For MOON BEVERAGES LTD. (Authorised Signatory) The assessees intimated M/s. PEL regarding drainage of 872 units, 980 units and 1361 units, as seen from the letters at pages 269, 272 and 274 respectively. M/s. PEL has confirmed drainage of 872 units of concentrates in its letter dated 12-1-1990 (page 270 of File No. 5 and 1361 units of concentrates by its letter dated 19-2-1992 (page 275 of File No. 5). The Adjudicating authority has accepted drainage of 995 units of concentrates on the basis of evidence of Shri Avtar Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister. 03/93 to 09/93 1,027 538 489 685 69.45 *364.55 16.82% *Denotes Stock in Hand as on 30-9-1993. 13. Regarding the charge of non-accountal of receipts and issue of concentrates for the years 1989-90, 1991-92, the appellants submit that during this period, they were not enjoying the benefit of Modvat on aerated waters as during this period, Modvat credit was not available on aerated waters. They were not keeping any account in the statutory form for quantities of concentrates received and used but the quantities were reflected in the records maintained for the Sales Department as well as in the balance sheets prepared for the above financial years. They were also not including the quantity of concentrates that were destroyed due to drainage or used in excess due to saline nature of the water. The Commissioner in para 104-107 of the impugned order, has accepted that the refrigeration/cooling system in the factory of MBL has not been operational at times with the result that the optimum temperature essential in storage room could not be maintained and that the water available is saline and thus more concentrate was required in order to maintain the quality and flavour a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
