2009 (6) TMI 836 - AT - Central Excise

Clandestine removal - Proof - Confiscation - Raw material in excess - Held that - the charge of clandestine clearance in the case relating to the Unit I is found solely on the basis of the assessee s input output norms. This calculation is subject to various limitations such as quality of the raw material used and other process parameters. Moreover, the production norm, as claimed by the appellants, is determined after watching the performance of the production machinery over a period of time. This ratio cannot be reliably applied to determine the output of a given quantity of raw material issued in three days. Finding of clandestine production and clearance in the instant case was made solely on the basis of a formula applied to the operation of the assessee s production and feeding of raw material in a couple of days. No statement of any worker or any buyer had been obtained to support the charges. There is no evidence of sale to any buyer of the quantity found to have been clandestinely cleared. There is no evidence of receipt of any sale proceeds. In the circumstances, considering , the ratio of various decisions relied on by the appellants, the impugned demand towards clandestine clearance is held to be not sustainable. Appeal allowed - decided in favor of appellant.

Issues:
1. Allegation of clandestine production and clearance of goods.
2. Confiscation of raw material and imposition of penalties.
3. Application of input output norms and theoretical calculations.
4. Challenge to demand based on theoretical calculations.
5. Confiscation of raw material found in excess.
6. Legal basis for confiscation under Rule 25 of the Central Excise Rules, 2002.

Issue 1: Allegation of Clandestine Production and Clearance of Goods:
The case involved appeals against Orders-in-Original concerning the manufacture of Sodium Silicate products. The impugned order upheld the allegations of clandestine production and clearance against Unit I and Unit II. The authorities found discrepancies in production records, shortages in finished goods, and duplicate invoices. The appellants argued that the allegations were based on theoretical calculations and input-output norms, attributing the discrepancies to raw material quality and processing inefficiencies. They cited legal precedents to challenge the demand based on theoretical calculations.

Issue 2: Confiscation of Raw Material and Imposition of Penalties:
The original authority imposed penalties and confiscated raw materials from both units under Rule 25 of the Central Excise Rules, 2002. The appellants contested the confiscation, redemption fines, and penalties, arguing that Rule 25 does not allow for the confiscation of raw materials. They relied on a Tribunal decision to support their claim.

Issue 3: Application of Input Output Norms and Theoretical Calculations:
The judgment highlighted the limitations of relying solely on input-output norms for determining clandestine clearances. It referenced legal cases where demands based on theoretical calculations were deemed unsustainable due to various assumptions and lack of concrete evidence. The court emphasized the need for corroborative evidence to support allegations of clandestine activities.

Issue 4: Challenge to Demand Based on Theoretical Calculations:
The appellants challenged the demand for duty based on theoretical calculations, arguing that the calculations were not reliable due to factors like raw material quality and production machinery performance. Legal precedents were cited to show that demands relying solely on theoretical workings without substantial evidence were not sustainable.

Issue 5: Confiscation of Raw Material Found in Excess:
The judgment addressed the confiscation of excess raw material found in the premises of Unit II. The appellants provided explanations supported by documentary evidence to justify the movement of goods. The court held that confiscation of raw material from both units was not legally sustainable under Rule 25 of the Central Excise Rules, 2002.

Issue 6: Legal Basis for Confiscation under Rule 25 of the Central Excise Rules, 2002:
The judgment analyzed the legal basis for confiscation under Rule 25 of the Central Excise Rules, 2002. It referenced a Tribunal decision to conclude that Rule 25 applies to final products and cannot be extended to raw materials. The court vacated the orders of confiscation, fines, and penalties imposed under Rule 25, deeming them unsustainable in law.

In conclusion, the judgment allowed the appeals, vacating the demands of duty, penalties, and confiscations imposed on both units, emphasizing the importance of concrete evidence and legal compliance in excise matters.

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