2004 (97) ECC 31 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

East Zonal Bench -- Kolkata

Shri V.K. Jain, Member (T)

Creative Products Pvt. Ltd.

Versus

Commissioner of Central Excise, Kolkata-V

Appeal No. ESM-191/03

[Arising out of Order-in-Appeal No. 222/KOL-V/2003 dated 29.8.2003 passed by Commissioner of Central Excise (Appeals) Kolkata]

Order No. A-407/KOL/2004, dt. 22.6.2004, Certified on 2.7.2004

Duty demand (C. Excise)

Limitation -- Shortage of inputs -- Contention of Appellant that the remaining portion of the shortage was due to waste and scrap generated at the time of production is not acceptable because they have failed to produce any evidence documentary or otherwise, in support of their claim. They even did not mention the ratio of such waste and scrap generation -- Suppression take place hence extended period of limitation available.

[Para 4]

PRESENT :

Shri P.R. Biswas, Consultant for the appellant.

Shri J.R. Madhiam, JDR for the respondent.

Per : V.K. Jain

The present appeal filed by M/s. Creative Products Pvt. Ltd. is directed against Order-in-Appeal No. 222/KOL-V/2003 dated 29.8.2003 passed by Commissioner of Central Excise (Appeals), Kolkata. M/s. Creative Products Pvt. Ltd. (here-in-after called as the appellant company) are a manufacture of paper and paper-board. On a surprise visit, certain shortage of inputs was found in comparison with the recorded stock in RG-23A Part-I by the Central Excise Officers on 19.1.95. The Modvat Credit had been taken without adjusting the shortages. The appellant company has filed this appeal mainly on the ground that waste and scrap claimed by the appellant company, has been duly explained and there was no case of payment of extra duty on this account. Secondly, the Appellate Commissioner should have accepted the plea of the appellant company that certain shortages were on account of waste and scrap arising in accordance with the manufacture of the finished products. The claim of the appellant company that huge quantities of waste and scrap were deemed in the factory stockyard, was verifiable even at the stage of passing of the Order. Further, there was no suppression on the part of the appellant company. As such, the extended period could not be invoked and as a result, no evidence has been put forward to allege the clandestine removal and no duty should be demanded on such shortages.

2. I have gone through the submissions made by the appellant company and the records. The Commissioner (Appeals) in his Order has observed in para 3 of his Order could not explain the shortage of inputs found at the time of stock-taking, and in fact, they accepted the fact of shortage of inputs, but they claimed that the amount of duty involved on such shortage is Rs. 81,793.20 (Rupees eighty-one thousand seven hundred and ninety-three and paise twenty).

3. I have heard Shri P.R. Biswas, learned Consultant for the appellant company and Shri J.R. Madhiam, learned JDR for the Revenue. Shri Biswas has taken us to the Order-in-Appeal and reiterated the grounds of appeal in the Appeal Memo. Shri Madhiam has reiterated the findings of the Commissioner (Appeals) in his submissions.

4. I have gone through the Order-in-Appeal passed by the Commissioner (Appeals) and found that the Commissioner (Appeals) has dealt with the submissions of the appellant company. He has not accepted the contentions of the appellant company that the remaining portion of the shortage was due to waste and scrap generated at the time of production. They have failed to produce any evidence documentary or otherwise, in support of their claim. They even did not mention the ratio of such waste and scrap generation. As regards invoking of the extended period, he has held that it has been rightly applied as the fact of shortage was suppressed by the appellant company from the Department. He has upheld the Order of Confirmation of the Demand amounting to Rs. 81,788.40 (Rupees eighty-one thousand seven hundred eighty-eight and paise forty) which was admitted by the appellant company, as stated in para 3 of the Order-in-Appeal. I find that the Order-in-Appeal is well-founded and as such, I uphold the same and reject the appeal.

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