CCE Surat Vs. M/s Shivam Synthetics Ltd. on 03 September, 2007

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IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT AHMEDABAD

CCE Surat Vs. M/s Shivam Synthetics Ltd.

CORAM: MR. M. VEERAIYAN, MEMBER (TECHNICAL)

Date of Hearing: 03.09.07

Date of Decision: 03.09.07

ORDER No. /WZB/AHD/2007

Per: Mr. M. Veeraiyan, Member (Technical)

This is a Departments appeal against the order of the Commissioner (Appeals) No. RS/257/SRT-II/2006, dt.18.09.2006. None appeared for the respondent in spite of notice. Heard the learned SDR appearing for the Department and perused the record.

2. The relevant facts, in brief, are as follows:

a) The respondent is a manufacturer of Polyester Texturised/Crimped Yarn and they have used anti-static oil in relation to the manufacture of the final product.

b) When the officers visited their unit on 6.1.2000, they found that POY to the tune of 2,50,000 kgs. were issued during the year 1999-2000 for manufacture and on the basis of accepted excess production to the tune of 1.5.% attributable to use of anti-static oil, it was held that there was a shortage of 8731.415 kgs of final product.

c) The partner of the respondent company apparently admitted that such estimated excess quantity has been clandestinely removed without bringing into record and without payment of duty.

d) The original authority confirmed the duty and also imposed penalty equal to the duty demanded. The Commissioner (Appeals) set aside the order of the original authority.

3.1. I have carefully considered the submissions made by the learned SDR and the grounds of appeal. He relied upon the decision of the Larger Bench in case of Gopal Industries Vs. CCE Indore reported in 2007 (811) RLT 572 (CESTAT-LB).

3.2. The reasoning adopted by the Commissioner (Appeals) in setting aside the order of the original authority is reproduced below: 5. Now, I take up the case for final disposal. I find that the whole case is built on the statement of Shri Yadav wherein he stated that they have obtained 1.5% of oil gain due to use of antistatic oil in the production of textured/crimped yarn which was cleared without payment of duty in open market. I find that the department has theoretically determined the alleged production on the basis of the statement of Shri Yadav. This is without any further corroboration. It appears to me that there cannot be fixed gain, if at all there be. There is neither record of use of oil nor any other evidence, which suggested that stated gain of 1.5% is realistic. The adjudicating authority in his findings has not discussed single aspect of the case and merely confirmed the duty. It is totally a non-speaking order, which cannot sustain.

4. I find that this is not a case where any private records indicating the actual production or clearance in excess of what has been accounted in the statutory records were recovered. Therefore, the findings by the Commissioner that there was no record of use of oil or any other evidence which supported the estimate of gain of 1.5 % in production as realistic are relevant and can not be faulted.

5. The decision of the Larger Bench relates to a case where certain private records containing the details of production and issue, which were not reflected in statutory record were relied upon. The facts of the present case are not akin to those in case of Gopal Industries Ltd. cited supra.

6. In the light of the above, the appeal by Department is rejected.

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