COMMISSIONER OF CENTRAL EXCISE Vs. FINOLEX INDUSTRIES LTD.

JUDGEMENT

(1.) THE respondents M/s Finolex Industries Ltd. are engaged in the manufacturing of different types of PVC resins. After investigation by the officers, it was found that the assessee was filling excess quantity in the bags and the quantity varied from 0.06% to 0.39%. On the basis of internal records maintained by the company, a show -cause notice was issued requiring the respondents to show cause as to why they should not be required to pay duty on such excess quantity for the period from April, 1995 to June, 2000 during which such excess quantity was found to have been filled and penalty was also proposed.

(2.) IN the impugned order, the Commissioner held that respondents are not liable to pay duty and for this purpose he relied upon the decision of the Tribunal in the case of Reckitt & Coleman India Ltd. v. CCE reported in, 1993 (44) ECR 33, wherein it was held that when the rates of duty on the excisable goods manufactured is on specific basis, the fact that the appellants have filled the excess quantity or containers contained excess quantity cannot be a ground for demanding the duty.

(3.) THE learned SDR submits that the Commissioner has wrongly relied upon the decision in the case of Reckitt & Coleman India Ltd. (supra). It is his submission that in the case of Carborundum Universal Ltd. v. Union of India reported in : 1992 (58) ELT 403 (Mad), Hon'ble High Court of Madras had held that when the demand is raised as a result of stock taking under Rule 223A, the limitation under Section 11A is not applicable. Further, he also relies upon the -CS dated 20.10.2008 issued in respect of Pan Masala allowing 9% difference in weight for the purpose of levy of excise duty. It is his submission that when the excess quantity is filled in the bags and no allowance for difference in weight is permitted, the assessee should discharge the duty as per the weight.