THE COMMISSIONER, CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-I COMMISSIONERATE Vs. BALLARPUR INDUSTRIES LIMITED

JUDGEMENT

(1.) The captioned writ appeal is preferred challenging the order dated 25.4.2012 passed by learned Customs, Excise & Service Tax Appellate Tribunal(hereinafter called CESTAT), Eastern Zonal Bench, Kolkata in Excise Appeal No. 674 of 2006 in dismissing the appeal being infructuous. Facts of the case :

(2.) The factual matrix of the case of the appellant is that respondent-assessee is manufacturer of paper and board products, classified under Chapter No.48 of Central Excise Tariff Act, 1985. The officers of the appellant-Department visited the premises of the unit of the respondent from 18.10.1997 to 22.10.1997 and conducted joint stock verification of its finished products and MODVATABLE inputs, vis- -vis the stocks recorded in its statutory prescribed record and found a shortage of 6.607 metric ton in the NSS ML and 0.788 metric ton in SS ML variety of paper. It is also stated that a quantity of 204 Kg. of SS ML was found excess and the same was seized under a panchnama. There are also some deficiencies detected by the officers of the appellant. It was noticed by the officers of the appellant that sludge had been removed without reversing of his price in scrap arising out of MODVATABLE capital goods without payment of central excise duty. They found 62.314 metric tons of paper in excess without having been accounted for in its RG -1 and the same was seized. Show-cause notice dated 15.4.2008 was issued to the appellant and its Manager(Commercial) and Executive (Central Excise) as to why :

(3.) Notice to show-cause was also issued as to why the penalty should not be imposed on the assessee under section 11A of the Act and relevant Rules made thereunder for suppression of the facts and in contravention of the aforesaid Rules with intent to evade payment of duty. It is also stated that a notice was also issued to show-cause as to why interest should not be paid under section 11AB of the Act and Rules made thereunder for the said reasons, as to why a quantity of 62.314 metric ton valued at Rs.15,40,135/- seized for not having accounted for in the RG-1 should not be confiscated under relevant Rule of the Rule and penalty should not be imposed under Rule 173Q of the Rules for the same; and the Manager(Commercial) and Executive (Central Excise) of the assessee-company will not be penalised under Rule 209A of the Rule. The said notice was adjudicated by the Joint Commissioner (ADJN), CESTAT, Bhubaneswar-I by order dated 30.6.2005. In the said adjudication, the concerned authority confirmed the demand of central excise duties for (i) Rs.21,398/- on capital goods, (ii) Rs.98,462/- and Rs.531/- (Cess) on clearance of different varieties of paper, and (iii) Rs.3,17,960/- on the clearance of capital goods on which MODVAT credits had been availed, (iv) Rs.6,68,173/- on MODVATABLE inputs unutilized in the manufacture of finished goods and (v) rs.4,740/- on exempt goods (sludge), and recovery of further interest under section 11AB and a penalty of Rs.11,00,000/- imposed thereon. The said adjudication authority confirmed the central excise duty as demanded by the Department on capital goods, cess and other infraction as pointed out by the Department in the show-cause. That apart the concerned adjudication authority confiscated a quantity of 62,314 metric ton of paper and imposed penalty of Rs.1,00,000/- on the assessee besides imposition of additional penalty of Rs.1,00,000/- on its Manager(Commercial) and Executive (Central Excise).