Decided on January 18,1991



K. Sankararaman, Member (T) - (1.) M/s. Jeypore Sugar Co. Ltd. 1991 ] have filed these three appeals, aggrieved with three Orders-in-Original passed by the Collector of Central Excise, Bhubaneswar, all dated 28-11-1986. As the appeals cover common grounds, they were heard together as per their request and are being disposed of by this common order.
(2.) By his impugned orders, the Collector had confirmed demand of duty amounts of Rs. 1,05,154.27, Rs. 24,580.95 and Rs. 9,473.00, notices for which had been issued to them on 29-12-1984. It was alleged in these notices that they despatched their goods "Ferro manganese" in excess of the quantities declared by them raised final bills and also collected excess amounts from their customers M/s SAIL, Rourkela, for which they had not paid Central Excise duty. They had collected excess duty from their customers. The Collector considered their replies to the show cause notices as also their submissions in the personal hearing granted by him and held that the extended period of five years for issue of notice was applicable in their case because of evasion of duty due to suppression of fact. In their appeals before us, directed against these orders of the Collector, the appellants have submitted that they raised invoices on the strength of Railway Receipts issued by the Railways on the basis of the weighment of the loaded wagons in their siding under the supervision of the goods Clerk of the Railways. On weighment at the destination there were slight differences in quantities and in regard to manganese content. According to their contract with their customers, the weight and analysis at destination is final. Accordingly, they compensated the purchasers for shortages found and they received differential amounts from them for excess found. They pay duty on the basis of invoice prices in accordance with exemption Notification 120/75 dated 30-4-1975. Their refund claims for clearances made in April to June, 1976 due to difference of weight and manganese content between loading place and destination was not approved by the Superintendent of Central Excise, Rayagada as they were paying duty on the basis of invoice price under Notification 120/75 dated 30-4-1975 and had filed declaration as required thereunder that the invoice price was not influenced by any commercial or financial consideration, whether by contract or otherwise. They had not made any claim at the time of final assessment. On these grounds their refund claim was disallowed. On the basis of the above decision of the Superintendent they have been paying excise duty on the basis of invoice value at the time of clearances. The supplies being to a Central Govt. undertaking, there was no question of any other influence. The Collector erred in deciding the case against them holding that they had removed excess quantity and collected duty on excess quantity. Clean Railway Receipts were issued to them with the remarks on the Railway Receipt "loaded at J.S. Co. siding, weighed on their weighbridge under the supervision of Railway authorities". Based on the weights recorded by the Railway authorities, invoices were prepared and duty was paid on the value arrived at on the recorded weight. It has been contended that the demand of excise duty found short on the excess quantities only, ignoring the excess duty paid by them on the invoices of short value is not justified. As the payment of excise duty was made on the basis of the decision dated 15-6-1977 of the Superintendent of Central Excise, Rayagada, there was no reason to claim the difference of excise duty on the value of excess weights received at the destination, ignoring the shortages found at the destination.
(3.) IT has been urged that the Collector erred in saying that the shortage may be due to diversion of products after removal without any proof while accepting the excess found at destination as the wagons were weighed and sealed by the Railway authorities and clean Railway receipts were issued by the Railways on the weights recorded by them. They had enclosed a statement of excess and shortage found.;

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