Patliputra Steels Pvt. Ltd. vs Commissioner Of C. Ex. on 13 January, 2003

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Customs, Excise and Gold Tribunal – Calcutta
Patliputra Steels Pvt. Ltd. vs Commissioner Of C. Ex. on 13 January, 2003
Equivalent citations: 2003 (159) ELT 1160 Tri Kolkata
Bench: A Wadhwa, R K Jeet


ORDER

Archana Wadhwa, Member (J)

1. The demand of duty confirmed by the Commissioner vide his impugned order is to the extent of Rs. 53,39,506.00 (Rupees fifty-three lakh thirty-nine thousand five hundred and six) and an equivalent amount of personal penalty has been imposed on the applicant/appellant company. Earlier, the matter was remanded to the Commissioner with direction to quantify the applicants’/appellants’ duty-liability by taking into account the actual production of MS Rods and Bars in terms of the provisions of Section 3A(4). During the de novo adjudication, the applicants/appellants placed before the Commissioner all the documentary evidence showing their actual production. The Commissioner, however, did not accept the above documentary evidence and observed that the applicants/appellants have not been able to show as to why there was a lesser production than the A.C.P. fixed. He has also observed that they have failed to show the factors like lack of market, lack of working capital etc. or the non-availability of raw materials to substantiate their lower production claim. On the other hand, the applicants’/appellants’ contention is that they have placed all the records before him along with the electricity consumption records showing that they have consumed such quantum of electricity which is proportionate to their quantum of final manufacture of the goods. The Revenue has not been able to produce even an iota of evidence to rebut the applicants’/appellants’ claim of production.

2. After hearing Shri B.N. Chattopadhyay, learned Consultant for the applicants/appellants and Shri A.K. Mondal, learned SDR for the Revenue, we are of the view that the negative onus cannot be placed upon the applicants/appellants to show as to why the actual production was less than the annual capacity of production fixed by the Commissioner. If they are not having anything to rebut or to suggest that the production quantity claimed by the applicants/appellants, is not the correct quantity, the same has to be accepted and they cannot be called upon to show as to why and under what circumstances, its financial condition or the market condition or production was bad or less. We also note from the impugned order of the Commissioner, that he has not referred to any evidence, direct or indirect, to show that the actual production as claimed by the applicants/appellants, was not justified or correct and pseudo. In these circumstances, we are of the view that the applicants/appellants have been able to make out a prima facie case in their favour, and allow the Stay Petition accordingly.

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