SITARA CEMENT (PVT.) LIMITED Vs. CCE

JUDGEMENT

(1.) IN this appeal filed by M/s. Sitara Cement (Pvt.) Limited, the issue involved is whether the duty of excise is chargeable from them in respect of cement on the ground that there was shortage of plastic bags.

(2.) SHRI K.K. Anand, learned Advocate, submitted that the Appellants manufacture ordinary portland cement; that the Additional Commissioner, under the impugned order has confirmed the demand of Central Excise duty and imposed penalty on the ground that they had deliberately not accounted for 92,000 empty begs received by them from various suppliers; that on appeal, the Commissioner (Appeals) also under the impugned Order has rejected their appeal holding that the empty cement bags had been deliberately not accounted for in order to facilitate the clandestine removal of the cement without payment of duty. The learned Advocate, further, submitted that the Central Excise duty cannot be demanded and penalty cannot be imposed as the entire case is based on assumptions that 92,000 empty cement begs had been received by them; that further assumption made by the Department is that the cement was manufactured and clandestinely removed in these bags without their being any direct or corroborative evidence: that the Appellants had, but for non -accountal of 14,500 empty bags out of 92,000 empty bags, explained that they could not have received the empty bags; that 60,000 empty bags were not received by them, 12,000 empty bags had been accounted for in RG -9; 2500 empty bags are not covered by the demand period and 3000 empty bags had been shown in excess against invoice No. 14 dated 4.7.1995; that in order to prove clandestine removal of cement, there should be shortage of raw materials like clay, coke, lime stone, gypsum, clinker, etc; that there is nothing on record to show that stock of such raw material was physically verified with reference to raw material account maintained by them; that without any shortage of raw material, the allegation of clandestine removal is not sustainable.

(3.) COUNTERING the arguments, Shri D.N. Choudhary, learned SDR, submitted that the entire case is based on the documents collected/recovered by the Central Excise Officers from the transport operators/suppliers of HDPE bags used for packing of cement and the records of octroi check post through which cement bags were received by the Appellants; that it is specifically mentioned in the Order -in -Original, passed by the Additional Commissioner, that certain private records in the nature of hand written slips were also recovered by the Central Excise Officers and these slips contained details of goods supplied to various parties by the Appellants; that the contents of said slips were admitted by Shri Mohd. Shaffi and Shri Soni, employee of the Appellants during the relevant time; that the Additional Commissioner discussed these evidences in detail in the Order -in -original; that the evidences were also collected to show that the Appellants had clandestinely removed cement bags without payment of duty. The learned SDR also mentioned that the Appellants themselves in their reply dated 22.12.1999 after accounting for 77,500 bags had mentioned that accordingly the demand should be restricted to 14,500 bags only out of 92,000 bags; that thus this is clear admission by the Appellants about removal of cement in the unaccounted for plastic bags.