TMI Blog1999 (5) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... icates 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 in terms of Clause 5 of the agreement entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The said computerised sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 agitated the sales figu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to use the fresh arrival which resulted over storage of the earlier received material of concentrate. Due to this mistake of the storekeeper, almost about 872 units have expired and they are not fit to be used at all. Accordingly we have no other option then to drain off the said concentrate. We request that you may dispute your officer in whose presence the said concentrate can be drained off. We are writing this letter to inform you that in the next 10 days your 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and presently we have replaced our ammonia compressor and are further taking other technical steps to improve our cooling system. Through this letter we are again informing this department that the units, which have been spoiled, are to be drained as they are off no use. Unlike the earlier two situation we request you to depute your officer to witness the draining of the said units as same will also help in maintain the records. You may inform us any convenient date preferably within a fortnight so that needful can be done in your presence. Thanking you, Yours faithfully, For MOON BEVERAGES LTD. (DIRECTOR) The Superintendent, Central 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for manufacturing (In Units) Percentage of quantity extra used (In Units) Remarks 4-89 to 3-90 2,076 992 1.084 872 1. Drainage letter given to the Superintendent, Central Excise, dated 29-12-1989. 2. Drainage letter given to Parle dated 30-12-1989 3. Drainage carried out by Shri Nilesh Tailor, Representative of PEL vide letter dated 12-1-1990. 2,332 843 12/90 to 03/91 440 120 320 B. 980 440 1. Drainage letter for 980 Units given to the Excise Superintendent on date2-5-1991. 04/91 to 06/91 911 343 568 C. 1,361 2. Drainage letter for 980 Units given to PEL on date2-5-1991. 3. Drainage carried out by Sh Avtar Singh, Inspector CE S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants were making entries of all the quantities purchased by them. As regards 1992-93 and 1993-94, the assessees have rebutted the findings of the Commissioner that the genuineness of the form IV register and RG 23A was open to doubt because the records were duly authenticated and periodically scrutinised by Central Excise Officers. As for the Form IV account, they submitted that during this period, almost all the inputs were covered under the Modvat Scheme and therefore, the quantities were reflected in the RG 23A register which was authenticated by the Department. These contentions have strong force and have not been rebutted by the Department and hence we accept the explanation of the assessees regarding non-accountal. The Commissioner has also concluded that the quantity of concentrates which have been intimated to the Department for destruction/drainage is not out of the non-accounted quantity but is out of the accounted quantity. We are unable to agree with this conclusion. During 1989-90, the quantity of concentrates that is accounted for is 992. Permission for destruction of 872 units has been sought. Thus 120 units of concentrates are available for production of aerated w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
