2009 (10) TMI 784 - AT - Central Excise

Summary

Issues:
- Clandestine removal of goods
- Power consumption analysis
- Transfer of goods to White Field unit
- Non-maintenance of records

Clandestine Removal of Goods:
The case involved allegations of clandestine removal of goods leading to duty demand and penalties. The appellant argued that the confirmation of demand solely based on power consumption was erroneous. They contended that the power consumption analysis did not consider the power generated in-house by the factory from a DG set. Additionally, the appellant highlighted technical factors influencing energy consumption and manufacturing. They emphasized that no study was conducted to assess the factory's furnace conditions. The appellant also argued that the alleged clandestine removal lacked supporting evidence like transfer or clearance records. They asserted that production transferred to their unit at White Field was based on cost of production, which already covered duty liabilities.

Power Consumption Analysis:
The appellant challenged the validity of the power consumption analysis conducted by the Revenue. They cited a Tribunal decision and technical complexities influencing energy consumption to support their argument. The appellant emphasized that the Revenue's reliance on electricity consumption alone was insufficient for making demands. They pointed out discrepancies in the analysis and highlighted the need for a comprehensive assessment considering all technical aspects affecting power consumption.

Transfer of Goods to White Field Unit:
The Tribunal examined the transfer of goods to the White Field unit. It was revealed that the entire production of MS ingots at the factory was transferred to this unit. The appellant clarified that the White Field unit manufactured downstream products from the ingots. The Tribunal noted discrepancies in the value calculation based on the goods cleared to the White Field unit. By considering the cost of production per MT, the Tribunal found that the appellant had a prima facie case for waiver of the pre-deposit amounts due to substantial differences in the cost of production per MT.

Non-Maintenance of Records:
The Revenue argued that the appellant's failure to maintain records of incoming and outgoing materials indicated an intention for clandestine removal. They highlighted the absence of gate register records as suspicious, suggesting an attempt to remove goods secretly. The Revenue also pointed out discrepancies in power consumption between different periods and admissions by the appellant's director regarding higher duty payments. The Revenue's stance was that the lack of record-keeping implied an intention to engage in clandestine activities.

In conclusion, the Tribunal granted the appellant's request for waiver of pre-deposit amounts, staying the recovery until the appeals' disposal. The decision was based on the discrepancies found in the power consumption analysis, transfer of goods to the White Field unit, and the lack of concrete evidence supporting the allegations of clandestine removal.