2004 (97) ECC 631 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(B)

Shri S.S. Kang, Member (J) and Shri V.K. Agrawal, Member (T)

Hari Kewal Vanaspati Mills

Versus

CCE, Delhi-V, Rohtak

Appeal No. E/2098/2003-NB-B

Final Order No. 508/2004-B, dt. 17.6.2004, Certified on 6.7.2004

Import

Crude palm oil and degummed soyabean oil at concessional rate of duty in terms of Notification No. 22/99-Cus dated 28.2.99 -- Differential duty of Rs. 23,17,491 demanded on the basis of short delivery at port and lost in transit. The verification conducted by the Assistant Commissioner vide letter dated 26.5.2004, shows that there is a variation in quantity in respect of 5 consignments out of 13 consignments regarding which verification conducted and excess duty is demanded in the show cause notice. Matter requires reconsideration. The impugned order is set aside and the matter is remanded to the Adjudication Authority for deciding afresh after affording an opportunity of hearing to the appellants.

[Paras 2 & 6]

Appeal allowed by way of remand

PRESENT :

Shri Naveen Mullick, Adv. for the appellant.

Shri Virag Gupta, JDR for the respondent.

Per : S.S. Kang

Appellants filed this appeal against the Adjudication order passed by the Commissioner of Central Excise.

2. Brief facts of the case are that the appellants are engaged in the manufacture of Vanaspati and refined oil from the crude palm oil and degummed soyabean oil. The crude palm oil and degummed soyabean oil were imported at concessional rate of duty in terms of Notification No. 22/99-Cus dated 28.2.99 with the condition that imported oil shall be used in the manufacture of Vanaspati and refined oil. A show cause notice was issued demanding differential duty of Rs. 2317491 on the ground that the imported oil weighing 601.933 MT were short delivered at Port and lost in transit as such are not used for the manufacture of Vanaspati.

3. The Adjudicating Authority confirmed the demand and imposed the penalty.

4. The condition of the appellant is that they had imported 29 consignments of the oil in question and demand is made on the basis of short delivery at the Port for which they are not liable to pay any duty. In respect of the oil lost in transit, the contention of the appellant is that Revenue Authority wrongly calculated a demand. In fact the loss in transit is much below than mentioned in the show cause notice regarding which demand is confirmed. The appellants supplied a Chart to show the actual receipt of the oil in question and the quantity used in the manufacture of Vanaspati. The Chart was handed over to the Senior Departmental Representative for getting the comments of the concerned Commissionerate. Out of 29 Bill of Entries the particulars of 13 Bill of Entries were verified and the same were supplied by the office of Assistant Commissioner of Central Excise, Hissar vide letter-dated 26.5.2004. This verification report shows that out of 13 consignments there is variations is quantity in respect 5 consignments regarding which duty was of demanded in the show cause notice and confirmed by the Adjudicating Authority. The contention of the appellants is that in view of this, the matter requires re-consideration.

5. Heard learned Departmental Representative.

6. We find that in this case the duty was demanded in respect of the Oil imported by the appellants under Exemption Notification on the ground of short delivery at the Port and the loss in transit. The verification conducted by the Assistant Commissioner vide letter dated 26.5.2004, shows that there is a variation in quantity in respect of 5 consignments out of 13 consignments regarding which verification conducted and excess duty is demanded in the show cause notice. In view of this factual position, we agree with the appellants request that matter requires reconsideration. The impugned order is set aside and the matter is remanded to the Adjudication Authority for deciding afresh after affording an opportunity of hearing to the appellants. The appeal is disposed of by way of remand.

……………………….