9911796707
TMI Blog2004 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... lack; that the duty has been demanded on the ground that they removed the excess quantity of carbon black deliberately filled in each bag of carbon removed by them. The learned Advocate submitted that the nature of Carbon black in such that it sticks to almost all surfaces with which it comes into contract; that they were dispatching a slightly excess quantity of carbon black than the quantity in M.Ts for which the customer was being charged to avoid any complaints later on of short supply; that for example in an invoice for clearing 10 M.T. of carbon black, the net weight shown in private record 10.240 M.Ts; that as per Department 0.240 M.T. was additional carbon black cleared clandestinely; that in the invoice, the packing material was sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but was that of carbon black; that thus the Tribunal has no where upheld the finding that the standard excess quantity was not packing material but also carbon black; that once the earlier Adjudication Order was set aside and the matter was remanded, the entire issue was open and the Commissioner was directed to conduct the trade enquiry; that excess carbon was being filled as a trade practice; that in the impugned Order, the Commissioner has shut out their contention that the standard excess weight was packing material. He, further, submitted that the demand of duty is unsustainable inasmuch as the duty has been discharged on ad-valorem basis and even if they have supplied excess carbon black, they have not charged or realized any excess a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess quantity." The above "excess quantity" has not been accounted for in the RG-1 and the same has been clandestinely removed without payment of duty. On the basis of the two other registers which pertain to 1995-96 and 1996-97, it is alleged that during these periods the quantity clandestinely removed works out to 368.325 M.T. and 50.89 M.T. respectively. It is further stated that the invoices issued by M/s. OCCL reflected the weight of paper bags in addition to the weight of carbon black. It is observed that the sum total of paper bags did not conform to the total excess quantity." The learned SDR, further, mentioned that the Tribunal has also observed in the said Final Order as under: - "Therefore, if the contention that the total exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible and they pack the bags with the net weight of carbon black with the help of electronic packer machine; that similarly the report of Bolpur Commissionerate under whose jurisdiction M/s. Philips Carbon Black Ltd. falls, reveal that carbon black is filled automatically in bulk bags and paper bags from storage tanks and the entire process of filling is an automated process and it continues until the bags attain the desired weight. The learned SDR submitted that the Excise duty is levied on manufacture of goods and the duty is payable when the goods are cleared from the factory and it is immaterial whether any consideration for the same is received or not; that the issue involved is not one of valuation but removal of goods after manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d nothing more. The Adjudicating Authority has passed the present impugned Order after ascertaining the practice adopted by two manufacturers of carbon black. The Appellants have not countered the same by bringing on record any material/evidence to show that there exists a trade practice of overfilling the paper bags of carbon black. They have merely contended that the copies of the reports were not furnished to them. The matter, as already observed by us, was remanded to ascertain the trade practice of over filling of bags in respect of carbon black. The Appellants should have brought on record some material to show that such a trade practice does exist in respect of the impugned commodity. Even in appeal before us, the Appellants have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective of the fact whether any value is realized or not. As the excess quantity of carbon black has been removed, Central Excise duty is payable by the Appellants. We, therefore, upheld the demand of duty. Penalty is also imposable on the Appellant Company for clearing the manufactured excisable goods without payment of duty. The Penalty imposed, however, is on the higher side which is reduced to Rs. 20 lakhs only. No Penalty is imposable on other two Appellants, being Director and General Manager (Sales) in absence of any mens rea on their part. We, therefore, set aside the penalties imposed on Shri Anand Arya and Shri A.K. Singh and allow appeals Nos. E/3442-43/2004-NB(A). The appeal No. E/3441/2004-NB(A) is allowed partly. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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