2011 PLP (Trib (PTD)

JAVID IQBAL (JUDICIAL MEMBER).

This order will dispose of appeal instituted on behalf of registered person against the Order-in-Appeal No.564 of 2008 dated 26-11-2008 passed by the respondent No.2. The levy of federal excise duty amounting to Rs.63,000 and non adjustment of input tax of Sui gas bills are contested, with the plea that finding, is against the facts of the case, O.N.O is based on surmises and conjectures. On account of federal excise duty it was contested that it was not leviable because the product was produced and manufactured prior to July, 2007, on which date federal excise duty was not leviable. Appellant does not produce any raw sugar as has been alleged. The alleged supplies as indicated in show-cause notice during the month of December and January, 2008 pertains to beat sugar produced and manufactured prior to July, 2007, while on account of adjustment of input tax on Sui gas bills, it was stated that the amount has been, paid as per Sui gas bill and is verifiable, to this effect certificate of the competent authority has also been placed on the case record, therefore, levy of federal excise, penalty and non-adjustment of input tax as per Sui gas bill is unjustified. Precisely the facts of the case as reported in the impugned are that appellant is listed Public Limited Company. In appellant's case audit for the period July, 2007 to December, 2007 was conducted, wherein it was observed the non-payment of 1% federal excise duty on the sale of raw sugar, excess adjustment/claim input tax on Sui gas bills. So in the light of above show-cause notice issued, was replied by the appellant. The reply of show-cause notice by the company did not satisfy the respondent No.1, hence he charged the federal excise duty amounting to Rs.63,000 and disallowed the input adjustment of Sui gas bills amounting to Rs.6,93,

887. Feeling aggrieved registered person filed appeal before the respondent No.2, whereby the order-in-original has been upheld. It is this treatment against which the instant further appeal has been filed before the Tribunal. I have heard the arguments of the parties, perused the relevant orders and the other materials made available, it has been seen that on account of gas bills certificate has been issued by the competent authority indicating the same amount of input tax as claimed by the appellant. The Sui gas bills is showing the total amount of payment at Rs.29,570,150 which include the sales tax, the input adjustment claimed by the appellant has been found correct, disallowance of claim by the department is unjustified therefore on this point department is directed to allow the adjustment of input tax amounting to Rs.6,93,887 as per claim of the registered person (The photocopy of Sui gas bill and certificate showing the total amount of payment of Sui gas charges from the competent authority produced during hearing of -appeal have been placed on appellate record). Regarding the next objection about the federal excise duty, on examination of monthly performance statement for both the periods, it has been seen that for the period ending on June, 2007 the quantity 413 MT sugar beat has been declared which as per contention of the appellant is not raw sugar, but beat sugar manufactured prior to July, 2007. Also at the footnote of the statement of the period starting from 24-11-2007 and ending on 11-3-2008 the factum of beat sugar at 413 MT has been recorded. Beat sugar is not raw sugar. The beat sugar manufactured prior to July, 2007 is not liable to special federal excise duty at 1%. Department has wrongly charged the special federal excise duty amounting to Rs.63,000, therefore, it is deleted. The penalty and additional surcharge being consequential also stand deleted. C.M.A./219/Tax(Trib.)???????????????????????????????????????????????????????????? Appeal accepted.