2009 (2) TMI 533 - AT - Central Excise

Summary

Issues:
1. Shortage of raw material detected during a visit to the factory premises.
2. Confirmation of duty demand and imposition of penalties under Section 11AC of the Central Excise Act, 1944.
3. Appeal against the penalties imposed on the appellant.

Analysis:
1. The case involved a shortage of 51.847 M.T. of raw material detected during a visit to the factory premises of the appellant, who was engaged in yarn manufacturing. The appellant admitted the shortage and debited the duty amount availed as Cenvat credit on the raw material. The original authority confirmed the duty demand and imposed penalties under Section 11AC of the Central Excise Act, 1944, along with a penalty on the Director of the appellant-company.

2. The appellant appealed against the penalties imposed, arguing that there was no evidence of clandestine removal of goods, and therefore, the penalty under Section 11AC was not sustainable. The appellant cited a decision of the Hon'ble Punjab and Haryana High Court in support of their argument. The Commissioner (Appeals) modified the adjudication order, reducing the penalty to 25% of the duty amount as the appellant had deposited this penalty within the stipulated time frame.

3. Upon review, the Tribunal found that the General Manager and authorized signatory of the appellant-company could not explain the shortage as the Director was absent due to bypass surgery. The Tribunal noted that there was no evidence of clandestine removal of goods. The Director's statement, suggesting possible clearance of goods from the factory, was deemed a presumption due to his absence during the material time. Citing the decision of the Hon'ble Punjab and Haryana High Court, the Tribunal concluded that mens rea for penalty under Section 11AC was not established. As the demand of duty was not disputed and no evidence of clandestine removal was found, the penalty was set aside, and the appeal was allowed.