Birla Vxl Ltd. Vs. the Commissioner of Central

Birla Vxl Ltd. vs The Commissioner of Central

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Oct 27, 2003

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Citation: sooperkanoon.com/32803
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T S.S.
Decided On: Oct 27, 2003
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Birla Vxl Ltd.

Respondent

The Commissioner of Central

Legal References

Reported In: (2004)(91)ECC316

Excerpt

"m/s. birla vxl ltd., manufactured soda ash. in a visit, the officers found 1245.75 mts soda ash packed in 1115 bags which were not recorded in rg-1 register. the assesses claimed that these were factory sweeping and that they were not soda ash and, therefore, no entries were made in the register. these goods were seized. show cause notice was issued. before the commissioner the argument was made that the goods were seized. show cause notice was issued. before the commissioner the argument was made that the goods were not removed from the licensed premises and therefore, the allegation of evasion cannot be made and seizure will not be sustained. it was claimed that factory sweepings were subjected to laboratory test and only such lots which could be used for the manufacture of sodium silicate or any other industrial application were marketed it was claimed that before such marketing, the entries were made in rg-1. the commissioner denied their submissions and ordered confiscation of the material but allowed its redemption on fine and imposed a penalty of rs. 1 lakh under rule 173q of the rules. the assesses then filed an appeal and application for waiver of pre-deposit of penalty. shri j.c. patel arguing the case maintained that the factories were in the business for the last 30 years and this situation was in the knowledge of the department. it was claimed that in the absence of any admission of clandestine removal of the goods, the confiscation was not warranted and penalty was not sustained. the same judgments which were placed before the commissioner were cited before us". i) no clandestine removal is established is a fact found by the ld. commissioner adjudicating the case and no demands of duty were therefore made. ii) the goods are admittedly not fresh stocks manufactured but are sweepings or spillages. the commissioner finding on this effect :- "6.2 the notices are not unfamiliar with the central excise law and procedure. it cannot be said by any stretch of.....

Full Judgment

"M/s. Birla VXL Ltd., manufactured soda ash. In a visit, the officers found 1245.75 MTs soda ash packed in 1115 bags which were not recorded in RG-1 register. The assesses claimed that these were factory sweeping and that they were not soda ash and, therefore, no entries were made in the register. These goods were seized. Show cause notice was issued. Before the Commissioner the argument was made that the goods were seized. Show cause notice was issued.

Before the Commissioner the argument was made that the goods were not removed from the licensed premises and therefore, the allegation of evasion cannot be made and seizure will not be sustained. It was claimed that factory sweepings were subjected to laboratory test and only such lots which could be used for the manufacture of sodium silicate or any other industrial application were marketed It was claimed that before such marketing, the entries were made in RG-1.

The Commissioner denied their submissions and ordered confiscation of the material but allowed its redemption on fine and imposed a penalty of Rs. 1 lakh under Rule 173Q of the Rules. The assesses then filed an appeal and application for waiver of pre-deposit of penalty.

Shri J.C. Patel arguing the case maintained that the factories were in the business for the last 30 years and this situation was in the knowledge of the department. It was claimed that in the absence of any admission of clandestine removal of the goods, the confiscation was not warranted and penalty was not sustained. The same judgments which were placed before the Commissioner were cited before us".

i) No clandestine removal is established is a fact found by the Ld.

Commissioner adjudicating the case and no demands of duty were therefore made.

ii) The goods are admittedly not fresh stocks manufactured but are sweepings or spillages. The Commissioner finding on this effect :- "6.2 The notices are not unfamiliar with the Central Excise law and procedure. It cannot be said by any stretch of imagination that they are not aware of the requirements of Rule 9, Rule 47, Rule 49, Rule 173G of the Central Excise Rules, 1944".

Lead to the conclusion that B-Grade classification has not been arrived at, which is admittedly arrived after due tests and analysis. The non entry thereof in RG-1 should not raise any presumption advise to the assessee, since goods are required to be tested to check whether they are sweepings or B-Grade material.

iii) Since the goods are found to be slippages, they could as well be part of the goods removed on payment of duty and thus could be duty paid. Entry of such duty paid goods retained in the factory, due to leaks in packs/slippage and eventual sweeping in the RG-1 is not shown why it is to be maintained.

iv) Following the two members decision in the case of Anil Sunil Trade & Investments (P) Ltd., (2001 (129) ELT 616) this appeal is required to be allowed after setting aside the order.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Birla Vxl Ltd. vs The Commissioner of Central Same Subject Excise Same Judge S T S.S.