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2015 (11) TMI 459

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..... counting the stock is not correct in the case of M/s. Jaideep Ispat & Alloys P Ltd. Therefore, excess stock found may be due to this variance. In these circumstances, the excess stock found in the case of M/s. Jaideep Ispat & Alloys P Ltd. unit 1 & 3 are not liable for confiscation. Further, I find that in the case of M/s. Moira Steels Ltd. there is also excess stock found is less than 5%. There may be a variance of stock taking on average basis. In this case also the appellant is manufacturing two types of MS ingots. Therefore, allegation of excess stock on average basis cannot be alleged against the appellant. Allegation made against the appellant that these goods are meant for clearance clandestinely without payment of duty is correc .....

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..... was found excess. In the case of M/s. Shivangi Estate Ltd. it was found 13.82 MT which is more than 25% of the stock recorded in their statutory records. In other appellants namely M/s. Jaideep Ispat Alloys P Ltd. M/s. Moira Steels Ltd. the excess stock was found less than 5 % of the stock recorded in their statutory records. As finished goods were found in excess, therefore, it was alleged that these goods are lying in their stocks for removal clandestinely without payment of duty. In these circumstances, a show cause notices were issued to the appellant for confiscation of the said goods and consequently imposing the redemption fine and penalty on the manufacturer appellants and penalties on the authorized representative. The show cau .....

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..... pellant at this stage. He further submits that there may be little variance can be found but in the case of M/s. Shivangi Estate Ltd. there is a difference of more than 25%. But appellant is recording the stock in their statutory records on average basis and on weighment is also done on average basis then in that case there should not be any variance. Therefore, he supported the impugned order and submitted that the goods are liable for confiscation. He also relied on the decision in the case of Usha Martin Construction Steel Ltd. Vs. CCE Kanpur-2014 (306) ELT 270 (All). To say that excess stock fond in the factory and same has not been explained by the assessee. Therefore, the intention to evade duty is gathered from the circumstances. In .....

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..... re 3.5x4.5 inches. Therefore, the weighment method on average basis cannot be correct. Therefore, there may be a variation while taking the stock. In these circumstances, the method of counting the stock is not correct in the case of M/s. Jaideep Ispat Alloys P Ltd. Therefore, excess stock found may be due to this variance. In these circumstances, the excess stock found in the case of M/s. Jaideep Ispat Alloys P Ltd. unit 1 3 are not liable for confiscation. Further, I find that in the case of M/s. Moira Steels Ltd. there is also excess stock found is less than 5%. There may be a variance of stock taking on average basis. In this case also the appellant is manufacturing two types of MS ingots. Therefore, allegation of excess stock on .....

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..... is attributable to the manufacturing unit. Further in the case of Modison Ltd. (Supra) the issue before the LB of this Tribunal whether mens rea is required for imposing of penalty in such a situation. These are not the facts before me. Therefore, the case laws relied upon by the Ld. AR are not applicable, M/s. Jaideep Ispat Alloys P Ltd. Unit 1 2 and Moira Steel Ltd. the weighment method is not correct. 9. Therefore, I hold that in the case of these three appellants mentioned in para 8 above goods are not liable for confiscation. Consequently, redemption fine and penalty on the manufacturer appellant are not imposable. Further, the penalties on the authorized representative of these three appellants are also not imposable. With the .....

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