SMT. PREETI KHARE Vs. RAMCHARAN

JUDGEMENT

(1.) Delay of 239 days in refiling the appeal is condoned.

(2.) This appeal has been preferred by the Revenue under Sec. 35G of the Central Excise Act, 1944 (in short "the Act") against the order dated 7-2-2014 (Annexure A-1) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") claiming the following substantial question of law : -

(3.) A few facts relevant for disposal of the instant appeal as narrated therein may be noticed. The assessee is engaged in the business of manufacture of CI Pipes and fittings. On 16-7-2008, the preventive staff of Commissionerate conducted search of the factory premises of the respondent on receipt of a specific information that the assessee is involved in the clandestine removal of excisable goods. At the time of search, Shri Kamal Kant, Proprietor of the respondent was present in the factory. No record was found in the said premises and on enquiry from Shri Kamal Kant, it was stated that the records have been temporarily shifted to the office of their adjoining family concern M/s. Adhunik Industrial Corporation, Batala due to repair work. Thereafter, the physical verification of the stock of raw material and finished goods of the assessee was conducted. As a result thereof, 239.945 MT of inputs, i.e., pig iron and 133 MT of the finished products involving central excise duty of Rs. 16,00,306.00 was found short. Accordingly, the stock verification report was prepared on the spot which was signed by the Panches and Shri Kamal Kant. As per the Revenue, Shri Kamal Kant in his statement dated 16-7-2008 stated that they were engaged in the manufacture of goods under the brand name Anand only which was unregistered brand name and prior to 2007-08, they were also engaged in the trading of pig iron and pipes which had since been stopped last year. They were engaged in the manufacture of CI Castings, pipes and fittings, manhole covers, etc., and sell the same to the contractors, builders and their family units, namely, M/s. Adhunik Enterprises, Chandigarh, M/s. Madan Steels, Batala and M/s. Narindra Enterprises, Batala. They had not maintained any stock register of finished goods and the production was recorded in the raw material register which was also not entered from 4-6-2008 to till the date of search. The production was recorded by weight whereas in the sale invoices, the goods were sold by numbers without indicating the weight of the finished goods. Shri Kamal Kant accepted the quantum of shortage and its value and debited an amount of Rs. 16,00,306.00 voluntarily vide RG 23A Part-II entry dated 16-7-2008. Accordingly, a show cause notice dated 6-7-2009 was issued to the assessee. The adjudicating authority vide order dated 13-8-2010 confirmed the demand of Rs. 16,00,306.00 under Sec. 11A of the Act and also imposed penalty of equal amount under Sec. 11AC of the Act read with Rule 25 of the Central Excise Rules, 2002 and Rule 15 of the Cenvat Credit Rules, 2004. Feeling aggrieved, the assessee filed an appeal before the Commissioner (Appeals) who vide order dated 26-12-2012 allowed the appeal and set aside the order of the adjudicating authority. Being dissatisfied, the department filed an appeal before the Tribunal. The Tribunal vide order dated 7-2-2014 (Annexure A-1) affirmed the order of the Commissioner (Appeals) and rejected the appeal. Hence, the present appeal.