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TMI Blog2024 (7) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that in respect of other clearances, the same has been admitted. In view of the above, the submissions of the learned counsel that subsequently duty was paid cannot be accepted. It is a settled issue that waste and scrap are liable to duty even if it is generated out of duty-paid raw material. In view of the above, the confirmation of the demand of Rs. 11,78,778/- is upheld. With regard to the amount confirmed under Annexure III, the learned counsel has argued that the report placed by the Superintendent only states that connected invoices duly verified but invoice date (date of removal) does not tally with the dispatch date - The assessee could not put forward any evidence to prove that the goods were properly accounted and duty was paid on clearing the same. In view of the above, there are no reason to disagree with the Commissioner. Coming to the demand at Annexure VI, it is very clear that the Commissioner had accepted the report dated 31.03.2009 from the Range Officer which states that duty was paid for Serial No.1,2,6 to 10 while for Serial No. 4 and 5 duty was not paid, hence duty was confirmed only for Serial No. 4 and 5. Therefore, this demand needs to be sustained. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without the cover of proper invoices during the period 05.02.1999 to 30.06.2002. Based on the records and documents recovered from the appellants and other relevant parties like transporters, courier offices, buyers, etc., the Department compiled Annexures I to XIII, which contained the workings of the alleged duty liability on several counts. Accordingly, the appellants were issued with Show-cause Notice No. 02/2004 dated 01.03.2004 demanding a total duty of Rs.2,54,01,781/-. The Commissioner on verification of various documents and based on the verification reports submitted by the Range Officers confirmed duty only to the extent of Rs.30,39,220/- and dropped the balance amount of duty. Further, by extending the benefit of Notification.No.2/95-CE dated 04.01.1995, confirmed the duty of Rs.15,19,610/- along with interest and imposition of penalty. Observing that part of the confirmed demand had been paid prior to the issuance of the notice, imposed penalty under Section 11AC only for the remaining amount of duty to be paid. Aggrieved with the above Order-in-Original, the Department as well as the party are in appeal before this Tribunal. 3. The learned Counsel on behalf of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner in respect of other Annexure-I. IV and XII to the Show-cause-Notice, but, has been rejected without any reasoning in respect of Annexure III. For Annexure VI demands, it is stated that the Range Officer vide his report dated 14.7.2008 has confirmed that all the invoices in respect of Annexure-VI was verified, but, the only objection of the Range Officer was with reference to non-intimation of cancellation of invoice within 24 hours. Therefore, the confirmation of the demand is contrary to the factual verification undertaken by the Range Superintendent. That no statutory requirement exists to report the cancellation of invoices within 24 hours to the Range Officer. Hence, the demand is not sustainable. 3.4 Referring to the benefit of exemption Notification No.2/1995-CE dated 04.01.1995, the learned counsel claims that it is available even in respect of goods removed clandestinely. Reliance is placed on the following decisions: Euro Cotspin Ltd. vs. CCE, Delhi - 2001 (127) ELT 52 (Tri.-Del) Sri Chakra Tyres v. CCE, Madras - 1999 (108) E.L.T. 361 (Tribunal - LB) Affirmed by the Hon ble Supreme Court - CCE vs. Srichakra Tyres Ltd. 2002 (142) E.L.T. A279 (S.C)] CCE, Jaipur-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had reported that the invoice date, date of removal as claimed by the assessee does not tally with the date of despatch. It has also been reported that the figures of date of despatches shown under different Annexures are found to be not tallying with the DTA invoices. In this regard, it may be seen that the product manufactured by the assessee are toroidal transformer i.e., transformers used in the electronic/electric circuits/gadgets and it does not have any unique identification marks for corroboration. The goods are identified by model number only and there are number of particular models manufactured and there is no corroborative evidences/markings to prove that a particular product cleared under a particular proforma invoice has later been duty-paid under another DTA invoice on a later date. Hence, though the assessee had filed the reconciliation statement, they had failed to prove the duty-paid nature of the goods cleared under proforma invoices, courier receipts, etc., in the absence of adequate corroborative evidences with regard to the identification of the goods and date of its clearance. 4.2 The Revenue referring to the statement of Mr. Rajesh, Partner, Roy Var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee compiled the said clearances and submitted a compilation sheet along with their reply to the show-cause notice which was verified by the jurisdictional Range Officer and it was reported that the dates of the proforma invoices raised during its clearances were not tallying with the central excise invoices as contended by them. There were also no other corroborative entries to correlate and accept their contention. For example, in respect of Sl. No. 9 of Annexure VII, the date of despatch is shown as 19.11.2001, while the invoice date is shown as 29.09.2001; Sl. No. 46 of Annexure VII, the date of despatch is shown as 20.12.2001, while the invoice date is shown as 29.09.2001; Sl. No. 49 of Annexure VII, the date of despatch is shown as 04.03.2002, while the dates of 7 invoices are shown as 29.05.2001(2), 29.06.2001[3], 30.01.2002 28.02.2002; Sl. No. 1 of Annexure VIII, date of despatch is shown as 03.05.2002, while the invoice date is 31.01.2002; Sl. No.6 of Annexure X, the date of despatch is shown as 04.06.2002, while the date of invoice is shown as 30.03.2002; Sl. No. 5 of the Annexure X, the date of despatch is shown as 03.06.2002, while the date of invoice is shown as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity as penalty under Section 11AC was reduced to that extent. The Hon ble Supreme Court in the case of M/s. Rajasthan Spinning and Weaving Mills has observed that We completely fail to see how payment of the differential duty whether before or after the SCN is issued can alter the liability for penalty, the conditions for which are clearly spelled out in Section 11AC of the Act. As a result, in pursuance to the above facts and decisions of the Hon ble Supreme Court, the Adjudicating Authority should have confirmed an amount of Rs.30,39,220/- in this case and also should have imposed equivalent penalty of Rs.30,29,220/-. 4.7 Considering the above submission, the departmental appeal is liable to be allowed and the party appeals is liable to be dismissed. 5. Heard both sides. The period of dispute is from 05.02.1999 to 30.06.2002, the show-cause notice demanded duty of Rs. Rs.2,54,01,776/-. The issue before us is whether: (i) The duty demanded by the Commissioner in the impugned order for Rs.15,19,610/- is liable to be confirmed or the original demand of Rs.2,54,01,776/- is to be confirmed as claimed by the Revenue in their appeal. (ii) The second issue is whether the appellant-asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding the entire demand as per the notice does not arise. Therefore, since the Commissioner has given a detailed findings based on the Range Officers confirmation, the Revenue s appeal fails. 5.2 The amount confirmed by the Commissioner in the impugned order is as follows: (Amounts in Rupees) Annexure Amount of duty confirmed 50% of the duty Not contested by the appellant I 21,112/- 10,556/- Not contested II 23,57,556/- 11,78,778/- III 5,41,287/- 2,70,644/- V 23,485/- 11,742/- Not contested VI 53,644/- 26,822/- VII 792/- 396/- Not contested XIII 41,344/- 20,672/- Total 30,39,220/- 15,19,610/- 5.3 The appellant has disputed the demands only under Annexures II, III, VI and XIII. The Commissioner in the impugned order has confirmed demand of Rs. 11,78,778/- on waste and scrap cleared without payment of duty, which is not disputed by the appellant. However, the learned counsel relying on the document at page 544 of their written submission claims that duty had been paid on scrap for Serial No.1 to 8, 10 to 12, 14 to 16 of Annexure II and XIII. However, from Para 13 of the impugned order, Commissioner having noted that the appellant had claimed duty observes that the assessee stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Range Officer which states that duty was paid for Serial No.1,2,6 to 10 while for Serial No. 4 and 5 duty was not paid, hence duty was confirmed only for Serial No. 4 and 5. Therefore, this demand in our view needs to be sustained. 6. The second issue is whether the appellant is eligible for the benefit of exemption Notification No.2/1995-CE dated 04.01.1995. The Commissioner has relied on the decision of M/s. Euro Cotspin Ltd. Vs. CCE, 2001 (127) ELT 52 (Tri-Delhi). Since this decisions has been set aside by the Hon ble Supreme Court in the case of Commissioner of Central Excise, Chandigarh-I Versus Euro Cotspins Ltd 2011 (272) ELT 343 (S.C), the above decision is no more a good law. The Hon ble Supreme Court in the above case observed as follows: The respondent-assessee is a 100% export oriented unit engaged in manufacturing yarn. The preventive staff of the Central Excise Division, on a visit to the factory of the assessee found that a certain amount of goods were removed in a clandestine manner and without showing in the books of accounts were sold in the domestic tariff area in excess of the permissible limit without getting sanction from the concerned authority. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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