9911796707
TMI Blog2024 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... issionerate revealed the nonexistence of the two dealers, the demand confirmed on account of undervaluation of the goods cleared to these two dealers in the impugned order, is sustainable. Accordingly, the demand of Rs.5,68,101/- confirmed in the impugned order along with interest upheld. As the suppression of value has been established, the penalty equal to the duty imposed upheld on this count. Benefit of the N/N. 10/96-CE dated 23.07.1996 - HELD THAT:- The appellant would not be eligible for the benefit of notification 10/96-CE, to the extent of clearance of traded goods cleared during the period mentioned supra, proportionately. Accordingly, the denial of the benefit of notification 10/96-CE for all the goods manufactured and cleared is legally not sustainable. The benefit of notification 10/96-CE is not available to the appellant proportionately to the extent of value of the traded goods cleared by the appellant in the containers and jars. From the impugned order, we observe that demands of Rs.27,92,810/- and 50,95,061/- has been confirmed by denying the exemption 10/96-CE for all the goods. In view of the observations, the benefit is to be denied only proportional to the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne clearance is not sustainable. Penalties imposed on the Directors of the appellant-company - HELD THAT:- The penalty has been imposed for their role in the commission of the alleged offence. From the findings, it is observed that the allegation of under valuation of goods cleared to non-existent dealers has been sustained. The allegation of irregular availment of the benefit of exemption notification 10/96-CE is partly sustained and the allegation of clandestine removal of goods is not sustained. Considering the roles played by the appellants, it is observed that the penalties imposed on the Directors of the appellant company is on the higher side, which need to be reduced in proportion to the offence committed - the penalties imposed Shri. Deepak Keshan and Shri. Rahul Nangalia Directors of the Appellant-company, reduced from Rs.1,00,000/- to Rs.50,000/- each. Application disposed off. - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Arijit Chakraborty, Advocate for the Appellant Shri B. K. Singh, Authorized Representative for the Respondent ORDER The instant appeals are filed against the Orderin- Original No.1/Commissioner/CE/Kol- VII/Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial amount over above the stock transfer price against each consignment of stock transfer and discharged duty liability only on stock transfer price. Duty liability on this count was worked out as Rs. 73,241/-(Annexure C-2 to SCN). This demand has been confirmed in the impugned order along with interest and penalty. The Appellant paid an amount of Rs. 6,66,000/- on 08.12.2008 against the various demands confirmed in the impugned order, which includes this demand. However, the appellant has not contested this issue in the present appeal. 2.4. The Notice alleged that the Appellant sold substantial quantity of goods at much lower price in the guise of stock transfer to M/s. Mayur Sales Corporation and M/s. Sunrise Enterprise, which are non-existent as per report from Delhi Commissionerate. The duty demanded in the notice in this regard works out to Rs. 5,68,101/- for the period from July, 2008 to August, 2009. (Annexure C-3 to SCN).This demand has been confirmed in the impugned order along with interest and penalty. The Appellant paid an amount of Rs. 6,66,000/- on 08.12.2008 against demands confirmed in the impugned order, which includes this demand. The appellant has not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant submits that the method of Valuation adopted is grossly incorrect and has been made without allowing permissible deductions. Accordingly, the appellant submits that the demand confirmed in the impugned order on this count is not sustainable. However, they have already paid the duty and hence they are not contesting the issue. 3.1. Regarding the issue raised in para 2.3 supra, the appellant submits that M/s. Mayur Sales Corporation was holding VAT/TIN no. 07550319639 and provided Form F with consignment notes. M/s. Sunrise Enterprise was holding TIN: 07780281343 and also provided Form F along with consignment notes. However, they paid the demanded amount in this regard under Letter dated 08.12.2008 and prayed for non-issuance of any SCN u/s 11A (2B) of Central Excise Act, 1944. Even though they paid the duty and demanded non-issuance of Notice, the adjudicating authority has confirmed this demand along with interest and imposed penalty. The submission of the appellant is that the two dealers were existing during the relevant period and issued consignment notes. There was no investigation conducted by the officers with the Sales Tax Authority to ascertain the current stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Technical) wherein he has clarified that the percentage of FFA differs due to several circumstance. The demand has been raised only on presumption basis. Further, allegation is not corroborated by any evidence. Thus, the appellant submits that the demand confirmed in the impugned order on this count is not sustainable. 3.4. Accordingly, the appellant prayed for setting aside the demands confirmed in the impugned order and allow their appeal. 4. The Ld. A.R. reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal records. 6. We observe that the appellant has not contested the demand of Rs. 73,241/- confirmed in the impugned order. Accordingly, we uphold the demand of duty of Rs.73,214/- confirmed along with interest and penalty imposed in the impugned order. 6.1. Regarding the demand of Rs. 5,68,101/- confirmed in the impugned order, we observe that the confirmation of demand is on the basis of the report received from the Delhi Commissionerate indicating that the Appellants have sold substantial quantity of goods at much lower price in the guise of stock transfer to M/s. Mayur Sales Corporation and M/s. Sunrise Enterprise, which were found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of the exemption notification 10/96.CE. It is also alleged that the appellant has cleared traded goods in these containers. We observe that in his statement dated 10.12.2008, Mr.Deepak Keshan, Director, has admitted that purchased RPO has been stored in the same tank with manufactured RPO. Thus, we observe that when the traded goods and the manufactured goods were stored in the same tank, it is not possible to segregate the manufactured goods alone and clear the same in the jars and containers and avail exemption as provided under notification 10/96-CE. We also observe that the appellant has cleared their trading goods to M/s. EPKAN Associates in 15 kg Tin and 15 kg Jar during the period from 01.04.2008 to 02.12.2008. In this regard, the appellant submitted that they have started production of Tin Containers from 29.05.2008 and Poly Jars from 28.02.2008 only for captive consumption. Even if we agree with this submission of the appellant, then the appellant has cleared their trading goods to M/s.EPKAN in tin containers from 29.05.2008 and in poly jars from 01.04.2008 and hence the appellant would not be eligible for the benefit of notification 10/96-CE in proportion of the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d product Refined Palm Oil, dutiable by-product fatty acid has been removed from factory, without payment of Central Excise Duty. The sole basis of this conclusion is a so called comparison between laboratory register and dispatch register, on the one hand and sales ledger and job dispatch register on the other. The appellant manufactures different grades of RPO and marked them accordingly from A to F. Where ever D and F are written, the Show Cause Notice took it for granted and the adjudication order accepted that those were Fatty Acid cleared in the garb of RPO. We observe that this conclusion is not supported by any evidence, statement, market survey etc, and is absolutely baseless. The conclusion in the Order-in-Original that laboratory register shows content of FFA (Free Fatty Acid) range 4.8 to 5.6% in crude palm oil in majority cases does not in any way proof that RPO (D)/RPO(F) which are admittedly inferior quality RPO is Fatty Acid not RPO. We observe that the Annexure C-6 does not reflect any comparison of the document mentioned in the Para iv of the impugned order. The said annexure refers to four seized documents namely 3/BBRL/FY08 and 19/BBRL/FTY/08 to 22/BBRL/FTY/08.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings above, we observe that the allegation of under valuation of goods cleared to non-existent dealers has been sustained. The allegation of irregular availment of the benefit of exemption notification 10/96-CE is partly sustained and the allegation of clandestine removal of goods is not sustained. Considering the roles played by the appellants, we observe that the penalties imposed on the Directors of the appellant company is on the higher side, which need to be reduced in proportion to the offence committed. Accordingly, we reduce the penalties imposed Shri. Deepak Keshan and Shri. Rahul Nangalia Directors of the Appellant-company, from Rs.1,00,000/- to Rs.50,000/- each. 8. In view of the above discussions, we pass the following order: (i) We uphold the demand of duty of Rs.73,214/- along with interest and penalty equal to the duty imposed in the impugned order. (ii) We uphold the demand of Rs. 5,68,101/- confirmed along with interest and penalty equal to the duty imposed in the impugned order. (iii) The demands confirmed at Sl. No. (i) and (ii) supra are appropriated from the amount of Rs. 6,66,000/- paid by the appellant on 08.12.2008 and the balance, if any, is payable by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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