2007 (5) TMI 414 - AT - Central Excise

Summary

Issues: Department's appeal against Commissioner (Appeals) order - Shortage of finished goods - Duty payment - Penalty imposition - Clandestine removal allegations

The judgment by the Appellate Tribunal CESTAT, Ahmedabad involved the Department's appeal against the Commissioner (Appeals) order dated 2-2-06. The case revolved around the shortage of finished goods discovered during an examination at the respondent's unit, where a significant quantity of raw materials was procured and utilized, but a shortage of clearances of finished goods was identified. The original authority concluded that texturised yarn corresponding to the shortages had been cleared without payment of duty, leading to the imposition of duty, interest, and penalties. The Commissioner (Appeals) allowed the appeal filed by the assessee, highlighting that the shortage calculations were based on past records and lacked tangible evidence to prove clandestine removal of goods, which was considered a serious charge requiring substantial proof.

The Commissioner (Appeals) reasoned that the shortage of goods was determined through mathematical calculations based on past records, emphasizing that the allegations in the show cause notice were founded on assumptions and presumptions. She stressed that charges of clandestine removal, being severe, necessitated concrete evidence for substantiation. The Commissioner found no private records indicating unaccounted production or clandestine removal, leading to the conclusion that the allegations were not sufficiently proven. This decision was deemed reasonable and did not warrant interference.

The Tribunal acknowledged the susceptibility of raw materials to wastage during handling and processing, highlighting the unrealistic expectation of correlating finished product quantities solely based on raw material procurement. Notably, no private records suggesting clandestine activities were recovered, further supporting the Commissioner's stance. Consequently, the Tribunal dismissed the Department's appeal, affirming the Commissioner (Appeals) decision based on the lack of concrete evidence to establish clandestine removal, thereby upholding the reasoning that the allegations were not substantiated.