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2015 (12) TMI 250 - CESTAT MUMBAI

2015 (12) TMI 250 - CESTAT MUMBAI - TMI - Loss and stock of the waste paper in a fire - whether indigenous goods or imported goods - Bexemption under notification No. 21/2008-Cus dated 1/3/2008 - demand of custom duty as well as denial of Cenvat Credit availed in respect of CVD - Held that:- Applicants were given sufficient opportunity to justify their claim that goods lost in fire is indigenous goods. However, applicant neither submitted any record nor explained their claim before the adjudicat .....

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ods lost in fire is indeed imported material and when it is so, demand of entire custom duty, excise duty is sustainable in toto. - Decided against assessee. - Application No. E/STAY/95414/14-MUM, E/STAY/92880/14-MUM, C/STAY/97230/14-MUM & C/STAY/92879/14-MUM In Appeal No. E/86981/14-MUM, E/85397/14-MUM, C/86140/14-MUM, C/85396/14-MUM - Dated:- 23-3-2015 - Mr. P.K. Jain, Member(Technical) And Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. M. S. Ramteke, Manager (Finance) For the R .....

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olved 1 E/86981/14-MUM 6,32,235/- 6,32,235/- 16,52,841/- 16,52,841/- 2 E/85397/14-MUM 6,32,235/- 16,52,641/- 3 C/86140/14-MUM 6,32,253/- 4 C/85396/14-MUM 6,32,235/- 6,32,235/- 16,52,841/- 16,52,841/- Aggrieved by the aforesaid order the appellant filed these appeals alongwith stay applications. 2. When the matter was called for hearing letter for adjournment was produced seeking adjournment on the ground that the dealing person is not feeling well there for he will not be able to attend the hear .....

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In the interest of justice though the more than three adjournment are not supposed to be given, this bench has given the adjournment and matter was listed today. Since this matter listed for stay and already stay is pending since Oct 2014 therefore we do not find proper to grant any further adjournment and hence taking up the stay application for disposed of. 3. Brief fact of the case is that the appellant is engaged in the manufacture of Kraft Paper falling under the Chapter Sub-heading No. 480 .....

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ustom duty exist. The department after scrutiny of records recording statement of various persons contended in the show cause notice that quantity destroyed is nothing but imported material which was imported during the month of April 2008 by availing the benefit of exemption under notification No. 21/2008-Cus dated 1/3/2008 which resulted the demand of custom duty as well as denial of Cenvat Credit availed in respect of CVD. In the first round of adjudication the demand of custom duty as well a .....

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he fact on the basis of First In First Out (FIFO) principle by which it can be ascertained that whether the loss due to fire is in respect of indigenous material or imported material. In the denovo adjudication, adjudicating authority vide order-in-original dated 21/102013, after considering the direction of this Tribunal granted opportunity to the appellant for submitting records to arrive at the factual position of loss and stock of the waste paper. Applicant was asked to produce the said docu .....

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ommissioner has found that appellant could not explain their claim rather from the records available, therefore it is established that fire loss material is of imported one and not of indigenous, hence confirmed the entire demand of custom duty as well as excise duty and penalty once again in the impugned denovo order. Aggrieved by the said order the applicant is before us with the present stay applications. 4. Shri. M. S. Ramteke, Manager(Finance) of the appellant company was present. 5. Shri. .....

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ascertained and therefore remanded the matter to the adjudicating authority. However, applicant before adjudicating authority not submitted details on FIFO principle but only submitted a copy of Form-IV register which was found by the Ld. Adjudicating authority as manipulated one because they were maintaining parallel Form- IV registers and there was serious variations between two Form -IV register therefore analysis of the record and manipulation clearly coming out from the records. The adjudi .....

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can be verified. Adopting the principle of First In First Our(FIFO), which is normal practice for ascertaining stock, the quantity of imported and indigenous waste paper can also be derived from the stock account for the month of April 2008. This exercise should have been done by the department before concluding that what was destroyed was only imported waste paper and not indigenous waste paper. Therefore, there is a lacuna in the impugned order. 8.2. On the other hand, contention of the app .....

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n be blindly accepted. 8.3 The appellant was also at fault in not intimating the department about the occurrence of fire, which amounts to suppression of facts from the department and the same was only intimated to the department in December, 2008, that too, when a query was raised about the discrepancy in the opening and closing balance of the waste paper declared in the monthly ER-6 Retunrs. Therefore, the appellant is also guilty of suppression of facts in the matter. A reasonable resolution .....

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