Judgment:
1. On matter being called, nobody appeared on behalf of the appellants.
Accordingly, I have heard Shri A.K.Chattopadhyay, learned J.D.R. for the Revenue.
2. Vide the impugned Order, duty of Rs.25,010.00 has been confirmed and an equivalent amount of penalty has been imposed under the provisions of Rule 173Q of the Central Excise Rules, 1944. The appellants are engaged in the manufacture of 'Formaldehyde' and cleared their product in a tanker. Inasmuch as the appellants do not have in-house weigh bridge in their factory, the said tankers are taken out of the factory for weighment purposes. Out of the three weigh bridges named by the appellants in their application, the Assistant Commissioner granted permission in respect of one Weigh Bridge i.e.M/s. Goenka Udyog.
3. On 18.5.96, the appellants cleared two tankers under cover of Invoice Nos.83 and 84 and took the same for weighment purposes to M/s.
Goenka Udyog. But as the said Weigh Bridge was found closed due to break-down, the tankers were taken to an alternative Weigh Bridge of M/s. Shiv Shakti for weighment. The certificates of weighment were taken and the tankers were brought to the factory and cleared on payment of excise duty by debit entries in their P.L.A. RT-12 returns of the said month were also filed by the appellants.
3.1. Subsequently, the appellants were served with a show cause notice dated 25.2.97 raising demand of duty of Rs.25,010/- alleged to be short-paid by them in respect of two Invoice Nos.83 and 84 both dated 18.5.96 on the alleged ground that the weighment of the tankers covered by the said two invoices were made in the Weigh Bridge other than M/s.
Goenka Udyog and as such, the same were removed in excess without payment of duty. The said show cause notice culminated into the impugned Order passed by the original adjudicating authority and upheld by the Commissioner(Appeals).
4. After giving my careful consideration to the factual position as narrated above and the grounds for appeal taken by the appellants in their Memo of Appeal, I find that there is no evidence of clandestine removal of the goods. There is nothing on record to rebut the appellants' contention that the re-cognised weigh bridge was out of order and as such they had to take the goods to another weigh bridge.
Keeping in view the hazardous nature of product, it is not improper for the appellants to take their products for weighment purposes to another weigh bridge. I agree with the observations of the authorities below that the appellants should have informed the Central Excise Authorities in respect of non-functioning of the re-cognised weigh bridge before taking the goods to another or at least after the weighment was done.
But this can be considered at best as a procedural infraction and cannot be made the basis for arriving at the inevitable conclusion of clandestine removal. In the absence of any other positive evidence of clandestine removal, I disagree with the conclusion arrived at by the authorities below. Accordingly, the impugned Order is set aside and the appeal allowed with consequential reliefs to the appellants.