Galaxy Surfactants Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. as per facts on record, the appellants are sending liquid fatty alcohol sulphate, which is a mixture of water and solid, water content being about 70% and solid content being about 30%, to their job worker for extraction of sodium laurel sulphate powder. in terms of the agreement, between the appellants and their job workers, recovery of the powder from the said product should be around 95%. the said powder was being received by the appellant from their job workers. however, as the losses exceeded 5% during the span of the period involved in the present appeal, the appellants raised a debit note of rs.1,80,269/- against their job workers for a total loss of 2912 kgs of such powder, which was not received back by them.2. revenue raised demand of duty on the said amount on the ground that the goods sent by them for job work under the provisions of rule 57f(4) have not been received back by them to the full extent and as such duty of rs.32,448/- was confirmed against them by the impugned order along with imposition of personal penalty of identical amount.3. it has been argued before us that the yield either more or less than 95% and the raising of debit notes against the job worker was a civil matter between the two. that was more in the nature or penal action against the job worker, so that in future he tries to give maximum yield to the appellants. it does not mean that the goods were otherwise recovered and removed. there is no such allegation or any finding to that effect. in these circumstances, the invisible loss, at the job workers end, cannot be subjected to levy of duty.4. we fully agree with the contention of the ld. advocate. the total loss of the yield was not in one go but was over a period of time, as explained by the appellants. it may happen, in some cases, that instead of getting 95% yield, the appellants may receive goods to the tune of 94.5% or so. it is the accumulated shortages, which are ultimately taken note of by the appellants, and as a part of the contract between the appellant and job worker, job charges are reduced to that effect, for which purpose the debit notes have been raised. this fact, by itself, does not give any right to the revenue to demand duty on such shortages, when admittedly such shortages are not on account of less yield. as such, we are of the view that the impugned orders are not sustainable. the same are accordingly set aside and appeal allowed with consequential relief.

Judgment:
1. As per facts on record, the appellants are sending Liquid Fatty Alcohol Sulphate, which is a mixture of water and solid, water content being about 70% and solid content being about 30%, to their job worker for extraction of Sodium Laurel Sulphate Powder. In terms of the agreement, between the appellants and their job workers, recovery of the powder from the said product should be around 95%. The said powder was being received by the appellant from their job workers. However, as the losses exceeded 5% during the span of the period involved in the present appeal, the appellants raised a debit note of Rs.1,80,269/- against their job workers for a total loss of 2912 kgs of such powder, which was not received back by them.

2. Revenue raised demand of duty on the said amount on the ground that the goods sent by them for job work under the provisions of Rule 57F(4) have not been received back by them to the full extent and as such duty of Rs.32,448/- was confirmed against them by the impugned order along with imposition of personal penalty of identical amount.

3. It has been argued before us that the yield either more or less than 95% and the raising of debit notes against the job worker was a civil matter between the two. That was more in the nature or penal action against the job worker, so that in future he tries to give maximum yield to the appellants. It does not mean that the goods were otherwise recovered and removed. There is no such allegation or any finding to that effect. In these circumstances, the invisible loss, at the job workers end, cannot be subjected to levy of duty.

4. We fully agree with the contention of the Ld. Advocate. The total loss of the yield was not in one go but was over a period of time, as explained by the appellants. It may happen, in some cases, that instead of getting 95% yield, the appellants may receive goods to the tune of 94.5% or so. It is the accumulated shortages, which are ultimately taken note of by the appellants, and as a part of the contract between the appellant and job worker, job charges are reduced to that effect, for which purpose the debit notes have been raised. This fact, by itself, does not give any right to the Revenue to demand duty on such shortages, when admittedly such shortages are not on account of less yield. As such, we are of the view that the impugned orders are not sustainable. The same are accordingly set aside and appeal allowed with consequential relief.