RAYALASEEMA CONCRETE SLEEPERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is preferred by the assessee against the order dated 20.7.04 of the Commisioner (Appeals) upholding the order -in -original, by which the Assistant Commissioner confirmed the demand of Rs. 40,569/ - by way of duty leviable on 63.150 MT, HTS wire 28.5 Kg, PVC Dowel 4187 Nos. and binding wire 3 trips found short as compared to recorded book balance in the raw material stock register of cement, confiscating 818 Nos. of fencing poles valued at Rs. 41,718/ -, with an option to the party to redeem the same on payment of redemption fine of Rs. 1000/ -, imposing penalty under Section 11AC of the Act of Rs. 15,309/ - for removing the inputs, fencing poles, without payment of Cenvat duty by contravening the relevant provisions with intention to evade payment of duty and imposing interest, as directed.

(2.) THE assessee -appellant has sent a communication dated 31.5.06 stating that the assessee did not desire any personal hearing and that the case may be decided on merits. The appeal is, therefore, heard with the assistance of the learned authorised representative for the department, who had referred to all the relevant material on record and the impugned orders.

(3.) THE appellant was engaged in the manufacture of pre -stressed concrete sleepers falling under Chapter 68 of the Central Excise Tariff Act, 1985 and was availing the facility of cenvat credit. When the Revenue Officers visited the factory of the assessee on 3.7.03, it was noticed that there was a shortage of 63.150 MT of cement as compared to the recorded book balance in the raw material stock register of cement. It was, further, noticed that the assessee was manufacturing cement fencing poles in the factory without maintaining any record relating to such manufacture. They produced four bills in respect of cement poles mentioned a total number of 700 fencing poles manufactured during the period 27.11.2002 to 24.12.2002. Moreover, 818 cement poles were found lying in the factory premises. No manufacturing activity of cement poles was reflected in the books accounts of the assessee nor was the stock of manufactured poles recorded. The production and clearance of such poles was not reflected in the monthly return filed under Rule 12 of the Central Excise Rules, 2000. Unaccounted 818 cement poles valued at Rs. 41,718/ - were seized under the panchnama as they were liable to be confiscated under Rule 25 of the said rules. The scrutiny of material outward register discloses that the assessee had removed 175 cement poles, 248.5 bags of cement, 28.5 Kgs. of HTS wire, 4187 Nos. of PVC dowel and 3 trips of binding wire to different customers from their factory without payment of duty of excise. 3.1 In their reply the assessee pleaded that stock of cement found short during verification was due to some quantity of cement being used in the formation of fencing poles. According to them, they manufactured the fencing poles by using swept cement and waste concrete and since these did not come under the regular manufacturing process, they did not maintain the records for such activity.