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Bharat Steel Rolling Mills and Others V/S Commissioner of Central Excise, Meerut-I


Company & Directors' Information:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

Company & Directors' Information:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

Company & Directors' Information:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- J B ROLLING MILLS PRIVATE LIMITED [Amalgamated] CIN = U13209DL2002PTC117083

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- A B ROLLING MILLS PRIVATE LIMITED [Active] CIN = U27100GJ2007PTC050668

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

Company & Directors' Information:- V M T STEEL ROLLING MILLS PRIVATE LIMITED [Active] CIN = U27105TZ1995PTC005753

Company & Directors' Information:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- D P ROLLING MILLS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC067044

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- T K STEEL ROLLING MILLS PRIVATE LIMITED [Active] CIN = U27104PB1972PTC004608

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

Company & Directors' Information:- B R ROLLING MILLS PRIVATE LIMITED [Strike Off] CIN = U28939PB1997PTC019913

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

Company & Directors' Information:- K. D. W. STEEL PRIVATE LIMITED [Active] CIN = U28910UP2011PTC043976

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

Company & Directors' Information:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- V R ROLLING MILLS PRIVATE LIMITED [Strike Off] CIN = U27105PB1995PTC016631

Company & Directors' Information:- M G ROLLING MILLS PRIVATE LIMITED [Active] CIN = U99999MH1978PTC020837

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

Company & Directors' Information:- S G ROLLING MILLS PVT LTD [Strike Off] CIN = U45202PB1992PTC011881

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

Company & Directors' Information:- STEEL MILLS OF INDIA PVT LTD [Strike Off] CIN = U27109WB1955PTC022703

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

Company & Directors' Information:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

Company & Directors' Information:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

Company & Directors' Information:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

Company & Directors' Information:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

    Appeal Nos. E/57 and 58/2011-EX[DB] (Arising out of Order-in-Original Nos. 18-19/Commr/MRT-I/2010 dated 28/09/2010 passed by Commissioner of Central Excise, Meerut-I) and Final Order Nos. 71104-71105/2018

    Decided On, 13 June 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench, Allahabad

    By, THE HONORABLE JUSTICE: ANIL CHOUDHARY
    By, MEMBER AND THE HONORABLE JUSTICE: ANIL G. SHAKKARWAR
    By, MEMBER

    For Petitioner: Aalok Arora, Advocate And For Respondents: Gyanendra Kr. Tripathi, Asstt. Commissioner (AR)



Judgment Text


1. These two appeals are arising out of Order-in-Original No. 18-19/Commr/MRT-I/2010 dated 28/09/2010 passed by Commissioner of Central Excise, Meerut-I.

2. The brief facts of the case are that the appellants were engaged in the manufacture of M.S. Bars/Angles falling under Chapter 72 of Schedule to Central Excise Tariff Act, 1985. They were using M.S. Ingots, M.S. Billets, Mis-rolls as inputs. They were availing facility of Cenvat credit. On 28.08.2008 officers of Central Excise conducted stock taking of finished goods and inputs in the factory of the appellant in presence of Shri Anil Sharma, Authorized Signatory. On the basis of the said stock taking two show cause notices were issued. Through the show cause notice dated 25.02.2009 appellants were called upon to show cause, as to why their final products TMT/CTD Bar and M.S. Strip valued at Rs. 5,32,00,317/- seized by Central Excise officers on 28.08.2008 found in excess in the factory premises should not be confiscated under Rule 25 of Central Excise Rules, 2002. Further, Shri Sharad Goel, Partner of the appellant's factory, who is also an appellant in the present proceedings, was called upon to show cause, as to why penalty under Rule 26 of Central Excise Rules, 2002 should not be imposed upon him. Another show cause notice dated 21.05.2009 was issued, calling upon to show cause as to why an amount of Rs. 1,32,68,939/- representing Cenvat credit involved in 3666.040MT of raw materials found short during stock verification on 28.08.2008. On contest both the show cause notices were adjudicated through the impugned Order-in-Original dated 28.09.2010. The appellant contended before the original authority that the officers of Central Excise Department remained in the factory of appellants for about 13 hours on 28.08.2008 and they claimed to have conducted stock taking of 3780 MT of CTD/TMT Bars and also that of raw materials such as M.S. Ingots which is practically not possible. They contended that the method of stock taking was advised by the officers and was not suggested by the authorized representative of the appellants. They also contended that there was burning loss between 2.5% to 3% during the manufacture of finished goods. They further submitted that excess found around 1500 MT of finished goods were manufactured by consumption of about 1580 MT of Ingots and therefore shortage of 3666.040 MT of Ingots should be reduced by 1500 MT. They also contended that the actual stock of Ingots was 1034 MT and not 103.425 MT as recorded by the officers. The original authority did not appreciate the submissions and confiscated the finished goods which were lying in the factory and not entered in the RG-1 register and imposed a redemption fine of Rs. 80 lakhs. He further confirmed the Cenvat credit demand of Rs. 1,32,68,939/- involved in 3666.040 MT of the alleged shortage of inputs. He ordered for appropriation of Rs. 76,71,486/- already paid by the appellant. The Original Authority imposed penalty of Rs. 80 lakhs under Section 11AC of Central Excise Act, 1944 on the appellant and imposed another penalty of Rs. 1,32,68,939/- under Rule 15 of Cenvat Credit Rules, 2004 on the appellant. The Original authority also imposed a penalty of Rs. 10 lakhs on Shri Sharad Goel, Partner of the appellant under Rule 26 of the Central Excise Rules, 2002. Aggrieved by the said order, both the appellants are before this Tribunal.

3. Heard the learned Counsel for appellant who has submitted that the show cause notice dated 25.02.2009 clearly indicates that the stock taking of inputs and final products were not done on the basis of actual weighment. The said show cause notice indicates that about 3800 MT of Final products and inputs were recorded to have been physically verified in a period of 13 hours, which is practically impossible. He has further submitted that 1431.560 MT of TMT Bars and 105 MT of M.S. Strips which were their final products were lying in the factory and the point of payment of duty was removal from the factory and since they were not removed from the factory, they did not become contravening goods and as a result, were also not liable for confiscation. The original authority should have concluded inappropriate maintenance of records. He further submitted that confiscation of finished goods ordered by the original authority is not sustainable. Learned Counsel relied upon final order passed by this Tribunal in the case of M/s. Industries Thermopack v. CCE, Delhi-IV reported at 2015 (329) ELT 500 (Tri.-Del.) wherein this Tribunal held in para-8 as follows:-

"8. After going through the show cause Notice and the impugned order the allegation against the appellant is that the goods lying in their factory are unaccounted and not entered in the statutory records since 21-7-2007 and till the date of visit that is 3-8-2010. On the basis of these, intent was drawn that these were lying in the factory for clandestine removal of the goods. No corroborative evidence has been produced by the Revenue to establish the intent of the appellant to remove the goods clandestinely. Therefore, following the decisions discussed here in above namely Steel Complex Ltd., Mutual Mecaplast Ltd. and Pharma Indiana Laboratory (supra) I hold that in this case provisions of Rule 25 of Central Excise Rules, 2002 have not been complied with. Therefore, goods are not liable for confiscation. Consequently, redemption fine and penalty is not imposable on the appellant and penalty on Shri Harish Kumar Sharma is not imposable under Rule 26 of the Central Excise Rules, 2002."
The learned Counsel has submitted that the said final order squarely covers the facts of the present case and pleaded that in the present case also intention to remove the goods not accounted for clandestine removal, cannot be established and therefore that part of the impugned order is not sustainable. The learned Counsel further relied on the ruling by Hon'ble Allahabad High Court in the case of CCE, Lucknow v. Star Steels reported at : 2015 (315) ELT 495 (All). He submitted that in the said case 581MT of goods were stated to have been weighted in 6 Hours time and that the Commissioner (Appeals) in the said case had found that the stock of few hundred tons could not have been weighted in 6 hours time. The learned Counsel have submitted that the show cause notice dated 25.02.2009 clearly indicates that the weighment was not carried out on 28.08.2008. Therefore, the conclusion that there was shortage was incorrect, since the verification suffered from infirmity. Further, revenue also did not establish that the said alleged shortages were not received by the appellant or were removed after availment of Cenvat credit and if removed to whom they were supplied. He has contended that the actual stock was 1034 MT whereas without weighment the officers had recorded the stock of inputs as 103.425 MT and not established where was the differential quantity removed. He has submitted that Cenvat credit is on receipt of duty paid inputs. So long as it is not established that inputs were not received or so long it is not established that the received inputs were removed without reversal of Cenvat credit, Cenvat credit cannot be recovered under provisions of Cenvat Credit Rules, 2004.

4. Heard the learned A.R. for revenue who has supported the impugned Order-in-Original.

5. Having considered the rival contentions and on perusal of records, we find that the submissions made by the learned counsel for appellants are sustainable in law. The duty is on manufacture and the payment of duty is differed till such time the goods are not removed from the factory. The alleged excess quantity of finished goods lying in the factory should have been ordered to be entered into RG-1 so that they get accounted for and suffer Central Excise duty and the appellant should

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have been charged with non maintenance of proper records. The goods manufactured by the appellants unless removed without payment of duty from the factory cannot be seized and confiscated. Further, we also accept the contention of appellant that Cenvat credit is admissible on inputs on receipt of the goods and unless it is establish that the inputs were not received or unless it is establish that inputs were cleared as such the Cenvat credit cannot be recovered. In the present case, we do not find any evidence either to establish that inputs on which reversal of Cenvat credit was sought were alleged not to have been received by the appellant. Further, there is no evidence that the same were removed without reversal of Cenvat credit. Therefore, we set aside the impugned order and allow both the appeals. Appellants shall be entitled for consequential relief, as per law.
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