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Commissioner of Central Excise, Kolhapur v/s M/s Dr. Writers Food Products Pvt. Ltd.


Company & Directors' Information:- B. P. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MP1994PTC032994

Company & Directors' Information:- DR WRITER'S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15120PN1983PTC141035

Company & Directors' Information:- S P P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412DL2004PTC128666

Company & Directors' Information:- J S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314OR1991PTC002964

Company & Directors' Information:- H R B FOOD PRODUCTS PVT LTD [Active] CIN = U15146WB1988PTC045281

Company & Directors' Information:- V D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400DL2012PTC231717

Company & Directors' Information:- P R FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC030483

Company & Directors' Information:- S S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15310MH2003PTC142530

Company & Directors' Information:- B K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15312OR1996PTC004541

Company & Directors' Information:- O H P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U52205DL1999PTC100269

Company & Directors' Information:- K V FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15122DL2007PTC162739

Company & Directors' Information:- K. C. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15431JK1982PTC000554

Company & Directors' Information:- K I C FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15316DL1979PTC009757

Company & Directors' Information:- R B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15313DL2010PTC202753

Company & Directors' Information:- R K B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490KL2013PTC033500

Company & Directors' Information:- S K G FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15419UP1991PTC013771

Company & Directors' Information:- B H FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15134DL1997PTC084273

Company & Directors' Information:- N S FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1992PTC055591

Company & Directors' Information:- H N FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15146UP1990PTC011540

Company & Directors' Information:- V K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412UP1988PTC010023

Company & Directors' Information:- B M FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15419WB1993PTC060386

Company & Directors' Information:- I K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1991PTC051852

Company & Directors' Information:- S S V FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15499AP1982PTC003547

Company & Directors' Information:- S Q P FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15100MH2003PTC139217

Company & Directors' Information:- F S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MH2000PTC126031

Company & Directors' Information:- Z K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400MH2010PTC209818

Company & Directors' Information:- M B S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U01112WB2003PTC096375

Company & Directors' Information:- N D FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15131DL2002PTC115754

Company & Directors' Information:- C K M FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909KL1998PTC012358

Company & Directors' Information:- G S C FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15316WB1985PTC038398

Company & Directors' Information:- A K G FOOD PRODUCTS PVT LTD [Under Liquidation] CIN = U15412WB1990PTC049789

Company & Directors' Information:- J M D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15419DL1998PTC097578

Company & Directors' Information:- L K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15200TG2016PTC103411

Company & Directors' Information:- FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15431JK1966PTC000304

Company & Directors' Information:- R R FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2015PTC154753

Company & Directors' Information:- A N FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400TG2013PTC091969

Company & Directors' Information:- R V S K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490DL2012PTC245851

Company & Directors' Information:- K G Y FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400KA1984PTC005909

Company & Directors' Information:- FOOD PRODUCTS (INDIA) PVT. LTD. [Strike Off] CIN = U15311HR1994PTC032356

Company & Directors' Information:- M K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15209DL1979PTC009924

    Appeal No. E/584/09 (Arising out of Order-in-Appeal No. P-II/PAP/23/2009 dated 9.2.2009 passed by the Commissioner of Central Excise (Appeals), Pune-II ).

    Decided On, 13 August 2010

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai

    By, THE HONOURABLE MR. ASHOK JINDAL
    By, MEMBER (JUDICIAL)

    For the Appellant : Shri N.A. Sayyad, Advocate. For the Respondent : Shri V.N. Ansurkar, Advocate.



Judgment Text

Shri Ashok Jindal, Member (Judicial)


Revenue has filed this appeal.


2. The facts of the case are that the respondents were engaged in manufacturing of cocoa and cocoa preparations viz. Chocolates as job worker of M/s Cadbury India Ltd. and also availing the CENVAT credit on duty paid inputs and capital goods. On verification of cenvatable inputs/ packing material invoices and CENVAT Credit accounts, it was noticed that the respondents maintained two different sets of account i.e. one at factory and another one which was submitted to the Range Office along with monthly ER-I returns and the entries made in the above two accounts were found to be different and it was further noticed that the respondents availed excess/double CENVAT credit of Rs.8,25,698/- during the period from January, 2003 to May, 2004. During the course of scrutiny of the records by the Audit, it was also noticed that the actual stock of packing material, on which the respondents availed CENVAT credit, was less than that accounted in the store account and on enquiry it was revealed that the respondents stored packing material outside their factory premises and the shortage of packing material found in the store/godown and the involvement of CENVAT credit was Rs.5,52,550/-. On the basis of the above facts, the respondents were issued with show-cause notice directing them to show cause as to why the amount of Rs.5,52,550/- being the amount of CENVAT credit availed on the inputs removed outside the factory premises without payment of duty should not be demanded and recovered under proviso to Section 11A of the Central Excise Act, 1944 read with Rule 12 of the Cenvat Credit Rules, 2002 alongwith interest, an amount of Rs.8,25,698/- being the excess/double CENVAT credit availed in contravention of provision of Rule 3(1) of the Rules should not be demanded and recovered in terms of proviso to Section 11A of the Act read with Rule 12 of the Rules along with interest. Penalty was also proposed under Section 11AC of the Act.


3. The adjudicating authority confirmed the demand vide order dated 30.8.2006 along with interest and penalty. Aggrieved from the said order, the respondents preferred an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) set aside the demand of Rs.5,52,550/- holding that the packing material stored outside the factory was purely a procedural lapse. With regards the excess availment of credit of Rs.8,25,698/-, he remanded the case with direction that the respondents have submitted a revised ER-1 and CENVAT account for the period January, 2003 to June 2004 with the office of the Commissioner of Central Excise, Pune-II on 17.10.2005 and the same may be taken into consideration and then it may be verified whether the entries made in the accounts maintained in the factory and the Range Office can be reconciled and it can then be verified whether double/excess credit of Rs.8,25,698/- has been availed or not.? The matter was re-adjudicated and demand of Rs.5,39,882/- was confirmed along with interest and equivalent amount of penalty was also imposed under Section 11AC. The adjudicating authority cleared held that he does not consider it necessary to go into invoice wise excess or short credit raised, otherwise he would have to call for the entire credit raised in ER-1 returns and examine the same.? Aggrieved from the said order, the respondent preferred an appeal before the Commissioner (Appeals), who dropped the demand relying on the report of the Range Superintendent saying that the excess credit has been taken of only Rs.516/- and same was disallowed asking reversal and being lower amount, no penalty was imposed. Aggrieved from the same order, the Revenue is before me.


4. The learned DR submitted that the Commissioner (Appeals) has not gone through the entire report of the Range Superintendent and as per the report, it is clear that the revised Chartered Accountant?s certificate produced before the Commissioner (Appeals) and compared with in ER-1 then the excess credit of Rs.5,39,882/- is seen. The Commissioner (Appeals) has not put any comments on this part of the report, hence the impugned order is liable to be set aside.


5. Heard.


6. I have seen the record and examined the same. On careful examination of the record, I find that the difference is of Rs.5,39,882/- where the Chartered Accountant certified that the respondents are entitled for a credit of Rs.2,93,97,221/- and as per the Audit done by the department, the respondents have availed credit of Rs.2,91,51,548/- and as per ER-1 is Rs.2,99,37,103/-. From the above figures, it is not shown in the certificate of the Chartered accountant whether the figure in ER-1 as Rs.2,99,37,103/- is the revised figure or not and the demand has been proposed in the show-cause notice on the basis of the said figure of ER-1 returns. From this fact, it is clear that the CA certificate is not on the basis of revised ER-1 returns and it is the observation of the CA that as per Audit and the accounts audited by the CA, the respondents have availed short credit of Rs.2,45,273/-. The adjudicating authority has not considered that part of the report and the invoice wise comparison was done by the Range Superintendent and as per report of Range Superintendent the reconciliation done with invoice wise along with revised CENVAT credit account, the only difference comes out to Rs.516/-, which has been confirmed by the Commissioner (Appeals). Further, the report of the Range Superintendent clearly shows t

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hat the revised CA certificate was compared with figures of ER-1 returns shown originally. It is clear that the figure of Rs.5,39,882/-is not as per revised ER-1 returns, the same cannot be taken into consideration. The Commissioner (Appeals) has rightly held that no reason has been given in the Order-in-Original for not accepting the Range Superintendent?s report, who is jurisdictional officer of the respondents. The impugned order is correct as per the report of the Range Superintendent and I do not find any reason to interfere with the same. Accordingly, I do not find any merit in the appeal and the same is rejected.
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