Custom, Excise & Service Tax Tribunal4. Whether Order Is To Be Circulated To ... vs Trishul Metals Ind. Ltd on 4 May, 2011IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi  110 066.
Principal Bench, New Delhi

COURT NO. III
Excise Appeal No. 1357 of 2009 (SM)

[Arising out of the Order-in-Appeal No. 47-48(DK)/CE/JPR-I/2009 dated 06/03/2009 passed by The Commissioner (Appeals), Central Excise & Service Tax, Jaipur. ]

For Approval and signature :
Honble Shri Rakesh Kumar, Member (Technical)
1.	Whether Press Reporters may be allowed to see	:
	the Order for publication as per Rule 27 of the
	CESTAT (Procedure) Rules, 1982?

2.	Whether it would be released under Rule 27 of 	:
	the CESTAT (Procedure) Rules, 1982 for 
	publication in any authoritative report or not?

3.	Whether their Lordships wish to see the fair		:
	copy of the order?

4.	Whether order is to be circulated to the 		:
	Department Authorities?
CCE, Jaipur-I							Appellant

	Versus

Trishul Metals Ind. Ltd. 					RespondentAppearance
Ms. Sukriti Das  for the respondent.Mr. R.K.Gupta, Authorized Representative (SDR)  for the appellant.CORAM : Honble Shri Rakesh Kumar, Member (Technical)


DATE OF HEARING : 04/05/2011.Order No. ________________ Dated : _____________


Per. Rakesh Kumar :-In this case, the Assistant Commissioner vide Order-In-Original dated 06.12.07 confirmed Cenvat Credit demand of Rs.2,49,696/- against the respondent along with interest and imposed penalty of equal amount under Rule 15 of Cenvat Credit read withsection 11ACof Central Excise Act, 1944 and besides this, penalty of Rs.10,000/- was also imposed on Shri Pradeep Dalmia, Director of the respondent company.  Above order was passed,  on 26.04.05 when Central Excise officers checked the stock of copper scrap in respect of which Cenvat Credit had been taken, shortage of 8500 kg. was detected for which Shri Pradeep Dalmia, Director of the respondent company could not give any explanation.  The respondent paid the disputed amount of Cenvat Credit even before issue of show cause notice.  The respondent filed to appeal, Commissioner(Appeals) against the Assistant Commissioners order who vide order dated 06.03.09, while upholding the Cenvat Credit demand, set aside penalty on the respondent company as well as on its Director, on the ground that there is no evidence of clandestinely removal of 8500 kg. copper scrap.  Against this order of the Commissioner (Appeals), revenue is in appeal challenging the Commissioner(Appeals)s order setting aside the penalty on the respondent company.2.	Heard both the sides.  Shri R.K.Gupta, Ld. DR assailing the impugned order of Commissioner(Appeals) pleaded that the respondent have not disputed the shortage of 8500 kg. of copper scrap in respect of Cenvat Credit has been taken, that no explanation for this huge shortage has been given by the respondent from which the only conclusion which can be drawn is that either this quantity of scrap in respect of which Cenvat Credit had been taken, had been clandestinely cleared, or this quantity had not been received but cenvet credit had been taken, that in either case, the respondent would be liable for penalty undersection 15of Cenvat Credit Rules read withsection 11ACof Central Excise Act, and that the reasons given by Commissioner (Appeals) for setting aside of penalty are therefore, not correct and the Commissioner(Appeals)s order on this point is not sustainable.  He, therefore, pleaded that the impugned order setting aside penalty maybe set aside and the original adjudicating authoritys order regarding, penalty on the respondent company may be restored.3.	Ms. Sukriti Das, Advocate, Ld. Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner(Appeals) and pleaded that just on account of shortage of scrap, it can not be concluded that the quantity found short had been clandestinely removed, that there is no admission by Shri Pradeep Dalmia, Director of the respondent company that the scrap found short has been cleared without payment of duty, that just because he has not given any explanation for the shortage, it can not be concluded that the scrap found short has been clandestinely cleared, that the allegation of clandestine removal must be supported by evidence of record without which such allegation would not be sustainable and that in this regard she relies upon the order of Tribunal in the case ofCCE, Kanpur vs. Kapoor Print Pack P.Ltd. reported in 2011(264)ELT/ 142(Tri.Del.).4.	I have carefully considered the submission from both the sides perused the records.5.	There is no dispute about the fact of shortage to the extent of 8500 kgs. in respect of Cenvated Copper scrap.  Further, Shri Pradeep Dalmia, Director of the respondent company while not disputing the shortage, has not given any explanation for the same.  Such type of shortages, in my view, can be either on account of clandestine removal or on account of purchase of invoices of scrap without receiving any material and in either case, penalty under Rule 15 of the Cenvat Credit Rules 2004 read with section 11AC would be attracted.  I am, therefore, of the view that the Commissioner (Appeals)s order setting aside the penalty on the respondent company under Rule 15 of Cenvat Credit is not correct.  The same is set aside and in this regard Order-In-Original passed by adjudicating authority is restored.  The revenues appeal allowed.(Dictated and pronounced in open court.)



(Rakesh Kumar)
Member (Technical)
RK-I