9911796707
TMI Blog2024 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... he Custom Excise and Service Tax Tribunal, West Zonal Bench, Mumbai (for short 'CESTAT') the appellant assessee has preferred this appeal under Section 35G of the Central Excise Act, 1944. 3. This Court (CORAM: Hon'ble the Chief Justice Y.N. Meena and Hon'ble Mr. Justice Akil Kureshi) by order dated 06.09.2007 admitted the appeal in terms of following questions: "The appeal is admitted in terms of the following question :- "Whether the Tribunal is correct in holding that duty on 17943 kgs. of billets seized on 27.3.1999 is payable though the evidence recording quantity of goods and consumption thereof as well as s clearance of final product on payment of duty was available and placed on record?" Issue notice to the other side. Paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Department and the appellant was called upon the show-cause as to why the excise duty of Rs. 5,83,312/- should not be recovered under the provisions of Rule 9 of the Central Excise Rules, 1944 read with proviso 11A (1) of the Act. 4.4. The appellant submitted the reply and after considering the written submissions of the appellant, the show-cause notice was adjudicated by order-in-original dated 28.08.2003. The Adjudicating Authority confirmed the levy of excise duty to the tune of Rs.5,87,312/- along with demand of interest and imposition of equal amount of penalty. 4.5. Being aggrieved, the appellant preferred an appeal before the Commissioner of Central Excise Appeals, Rajkot, who vide order in appeal dated 18.05.2004 rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above contention of the appellants. Shri Kadecha in his statement given on the spot has very clearly agreed that the quantity of billets seized on 27/03/99 and handed over to them have already been consumed in their factory for manufacture of excisable finished goods for which no entry was made in RG-1 register. The goods having been handed over to the appellants after the seizure, they were under a legal obligation to produce the same as an when called for by the department. Non availability of the said goods on the date of subsequent visit of the officers in the factory, read along with the statement of their authorized representative fully establishes that the goods have been consumed by them for manufacture of the final products. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory and verified the stock on the next working day. but they failed to do so. The ratio of the various decisions that mere shortage of the materials by itself is not a sufficient ground to establish the charge of clandestine removal of the goods applies in the present case. It is not only the shortage of the raw materials but the appellant's protest to the Commissioner immediately after the visit of the officer that the cut billets and the under process billets have not been taken into account which help me to make a view that there was no actual shortage of billets and the same was pseudo. There is no other evidence on record produced by the revenue to show that the billets are being used in the manufacturing of final products clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly confirmed the Excise duty and demand in view of the fact that, it is admitted by the appellant that the quantity of 17943 kg of billets were utilized which were in the custody of the appellant without permission and therefore the CESTAT was justified in confirming the duty. 6.1. It was further submitted that the CESTAT has arrived at a finding of fact to the effect that the statement of the authorized representative establishes that the goods have been consumed by the appellant for manufacture of the final products and therefore the Tribunal confirmed the excise duty and in view of the concurrent findings of the facts arrived at by the both the authorities, no interference may be called for. 7. Considering the above submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground as recorded in para no.7 of the Impugned Order passed by the CESTAT, it is not tenable in view of the fact that the CESTAT has distinguished shortage of 17,943 kg of billets on the ground that the same was seized on 27.03.1999 whereas the shortage of alleged 92475 kg of billets was set aside only because in view of the finding arrived at by the CESTAT that there was no actual shortage of billets and that same was only pseudo and there was no evidence on record produced by the revenue to show that the billets are being used in the manufacture of final products clandestine. 10. Thus the CESTAT has given categorical finding of the fact in respect of the 17,943 kg of billets which clearly shows that the appellant has failed to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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