Decided on June 29,2015

Sabero Organics Gujarat Limited Appellant
Commissioner of Central Excise And S.T. Respondents


H.K.THAKUR,MEMBER (T) - (1.)APPEAL No. E/11270/2013 has been filed with respect to OIA No. SRP/273 -275/VAPI/2012 -13 dated 21.02.2013. Brief facts are that a search was undertaken by the officers of Central Excise in the factory premises of the appellant on 11/12.09.2006 and Panchnama was prepared, during which shortage of certain finished goods was found.
(2.)Shri Rajesh R. Patel, Excise Executive and Authorised Signatory of the appellant in his statement dated 12.09.2006 stated that shortages found may be on accounting error with no clandestine intention to evade payment of duty and that he is not able to explain the shortages. It was also submitted that appellant is reversing the duty voluntarily in good faith with a scope to explain the same. Appeal No. E/326/2010 has been filed by the appellant with respect to refund of Rs. 11,40,458/ - paid during investigation. The said refund claim was returned to the appellant as premature as per order dated 09.09.2009 of the adjudicating authority. On an appeal, Commissioner (Appeals) vide order dated 13.11.2009, issued on 04.12.2009 also dismissed the appeal of the appellant by upholding OIO passed by the adjudicating authority.
(3.)SHRI Anand Mishra (Advocate) appearing on behalf of the appellant argued that there was no confessional statement of Shri Rajesh R. Patel, Excise Executive and Authorised Signatory and appellant disputed the duty alleged to have been evaded and the same was paid in good faith with scope to explain the shortages. Learned Advocate made the Bench go through the correspondence exchanged between the appellant and the department through letters dated 16.09.2006, 19.08.2009 and subsequent statement dated 11.08.2009 of Shri S.R.B. Nair, Chief Operating Officer and Director of the appellant, wherein he explained the shortages. It was the case of the appellant that the shortages detected by the officers of Central Excise during their visit on 11/12.09.2006 could not explain at that moment but there was no clandestine manufacture and removal. That the first appellate authority has simply brushed aside their arguments as an after thought. Learned Advocate also relied upon the final order No. A/11237/2013 -WZB/AHD dated 27.09.2013 (Appeal No. E/2652/2004 -SM) passed by this Bench in the case of Zenith Fibres Limited vs. CCE, Vadodara. He made the Bench go through Para 6 of this order to argue that a case of clandestine removal can not be based solely upon the statement, which can also not be said to be a confessional statement given by the appellant.

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