M/s. Arjan Dass Steel Castings Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Kolkata-II
Central Excise
2018 (7) TMI 161 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 9-5-2018
Appeal No. E/76850/2017 – FO/76049/2018
Central Excise
Shri P.K. Choudhary, Member (Judicial)
Shri N.K. Choudhary, Advocate for the for the Appellant/Applicant (s)
Shri H.S. Abedin, AC(AR) Respondent (s)
ORDER
Per Shri P.K.Choudhary
1. Briefly stated the facts of the case are that the appellant is engaged in the manufacture of M.S. Ingots falling under chapter 72 of the Central Excise Tariff Act, 1985. On 08.11.2006, the officers of the department carried out stock verification at the factory premise of the appellant and found that there was a shortage of 31.705 MT of finished goods of non-alloy steel ingots. The officers recorded the statements of one Shri Subal Bera, authorised signatory and Shri Sandip Agarwal, Director who had accepted the shortage. But could not expl
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of pipings/risings formed on the edges of the ingots. Such layers of pipings/risings were removed later after the finished goods had been weighed, and it was due to the removal of such extra layers of piping/ risings that there was an apparent difference between the weight recorded in the register and the weight of the actual stock. He further submitted that Shri Sandip Agarwal was not involved in the day to day functioning of the factory and therefore, his statement should not be relied upon. He also stated that the appellant had submitted a certificate from the Chartered Engineer according to which they were eligible for taking credit of Rs. 4,24,573.62. He further submitted that all payments made during the investigation were made under protest. There was no intention to evade payment of duty by suppressing facts. He relied upon the judgment of the Hon'ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. v. CCE & Cus reported as 2015 (39) STR 726 (Guj.).
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Court has referred to the 'user test' outlined in the case of CCE, Coimbatore v. Jawahar Mills Ltd. reported as 2001 (132) ELT 3 (SC), which lays down the ratio in determining whether particular goods could be categorised as capital goods or not.
7. Regarding the shortage of finished goods detected during the stock verification, I do not find any force in the submission of the ld. Advocate, as it was not substantiated by any evidence. The demand of duty is required to be upheld. I find that in order to impose penalty under section 11AC of the Central Excise Act, it is necessary to prove that there was fraud, collusion, wilful misstatement, suppression of facts with intent to evade payment of duty on the part of the appellant. There is no material available on record of clandestine removal of goods of the shortage quantity.
8. Accordingly, I uphold the demand of Central Excise Duty of Rs. 82,906/- as per Section 11A of the Central Excise Act, which has already been paid by the Appella
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