TMI Blog2002 (9) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... g to wrong availment of benefit of Notification No. 24/91-C.E., dated 25-7-1991. According to the Department under this notification benefit was allowable only for cement manufactured out of the clinkers produced in the same factory whereas it was found that the appellants had manufactured cement out of clinkers manufactured in their own factory using vertical shaft kiln as well as from clinker purchased from M/s. Chettinadu Cements Corporation Ltd. During the period from 12/92 to 7/93 they had purchased 1159.940 MTs of clinkers from outside and produced 1220.989 MTs of Cement and the inasmuch as cement produced was cleared at concessional rate, a differential duty of Rs 1,68,191/- was payable by the assessee-appellants. The records also revealed that on 23-7-93 i.e. the date of visit of Central Excise Officers, Form IV had a balance of 1214.579 MTs of Clinker whereas the physical stock was only 123.500 MTs leaving a shortage of 1091.079 MTs of Clinker. By using 1091.504 MTs of Clinker the assessee would have manufactured 1148.504 MTs of cement and would have removed the same clandestinely without payment of duty. There was also discrepancy in the account inasmuch as the Cement reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the reply furnished by the appellants and after granting personal hearing to the representative of the appellants, the impugned order was passed which is challenged by the appellants on the following grounds : (a) Notification No. 24/91 does not distinguish between cement produced out of assessee's own clinker and clinker purchased from outside. They have stated that the very same issue has been decided in their own case in their favour vide CEGAT Order No. 212/96 (b) As regards suppression of facts relating to shortage of clinkers, at the time of visit of the officers on 20-7-93 shortages was noticed in the stock of clinkers. But actually there was no shortage. Original stock i.e. 1214.579 was continued to be shown as stock in the Form IV Register and the same was issued for manufacture of cement. The department has not produced any evidence for the manufacture of cement by using the alleged shortage. As regards clandestine removal of cement is concerned, no evidence for the procurement of other raw materials such as clay, Coke breeze and gypsum in excess of the accounted quantity has been let in by the department. There is no evidence for the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty, he vehemently argued that penalty is not imposable in this case and he cited the decision of the Tribunal in the case of Punjab Reorders Ltd. v. CCE reported in 2002 (132) E.L.T. 41. 4.Shri C. Mani, learned DR appearing for the Revenue defended the order-in-original. He has invited our attention to para 13 onwards of the impugned order wherein the learned Commissioner has specifically and extensively dealt with the various grounds taken by the appellants and has come to a right conclusion. His order is well reasoned and needs to be sustained and he sought for dismissal of the appeal being devoid of merits. 5.We have carefully considered the rival submissions and gone through the case records and perused the case laws relied upon by the defence. Now we proceed to give our findings in respect of each of the item. A. Benefit of Notification No. 24/91 : 6.Appellants have taken the plea that the notification does not specifically say that clinker purchased from outside and used for manufacture of cement in the factory of the appellants will not be eligible for the benefit of the notification as had been specifically laid down in the previous Notifications 36/87-C.E. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to support the statement given by the person from whom the statement was recorded whereas in this case, there is acceptable evidence of removal of 2.5 Tonnes of cement to M/s. KAP Viswanathan Higher Secondary School. Further, Clinker purchased from outside has been used in the manufacture of cement is also supported by the statement of Shri Rajadurai, Senior Supervisor of the appellants. We observe that the raw materials required for cement are lime stone, clinker, coke breeze and gypsum. The appellants themselves have admitted that they have shown excess quantity of removal of lime stone from the quarry. The reason advanced by the appellants for the difference in the quantity of limestone was that in order to ensure that the State Govt. does not cancel their permit, they had to mention a specified quantity of lime stone having been removed. Removal of the quantity of lime stone as per the entries in the Daily despatch sheet is supported by the statement of Accountant of the mines. In the circumstances, we, are not inclined to accept this plea of the appellants. Shortage of other raw material viz. coke breeze is also supported by the payment of wages for unloading 1445.325 MTs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, as already noted above, the appellants have suppressed the fact of diversion of 838 bags of cement for manufacture of hollow blocks and the allegation of the department that the appellants have not brought to the notice of the department in that regard is supported by clinching evidence and we accept the same. D. Penalty : 9.In the impugned order the Commissioner has imposed a penalty equivalent to the duty amount under Section 11AC read with Rule 173Q of the C.E. Rules, 1944. We observe that Section 11AC came into force with effect from 28-9-1996. The period involved in the present case is 11/89 to 7/93. Therefore, penalty under Section 11AC cannot be imposed on the appellants. We also observe that the Commissioner has not apportioned the penalty amount under Rule 173Q and Section 11AC and a combined penalty under both the provisions has been imposed. Therefore, imposition of penalty is not sustainable in view of the decision rendered by CEGAT, New Delhi in the case of Punjab Recorder Ltd. v. CCE, Chandigarh reported in 2001 (132) E.L.T. 41. Respectfully following the said decision, we set aside the penalty imposed on the appellants. 10.In the result, the appeal is part ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
