2010 (6) TMI 708 - AT - Central Excise

Summary

Issues:
1. Shortage of 40.00 MT of M.S. Scrap during stock taking
2. Allegation of clandestine removal of goods
3. Duty demand, interest, and penalty imposition

Analysis:

Issue 1: Shortage of 40.00 MT of M.S. Scrap during stock taking
The case involved a discrepancy where Central Excise Officers found a shortage of 40.00 MT of M.S. Scrap during a stock taking at the respondent's factory. The adjudicating authority relied on the panchanama to confirm the demand for duty on the shortage. However, the Commissioner (Appeals) set aside the order, stating that the Revenue failed to prove the actual shortage and clandestine removal. The Tribunal, after considering arguments from both sides, upheld the shortage of scrap as recorded in the panchanama, dismissing the respondent's claim that no weighment was done and it was only an eye estimation. The duty demand was consequently confirmed.

Issue 2: Allegation of clandestine removal of goods
The Revenue alleged that the shortage of M.S. Scrap indicated clandestine removal of goods by the respondent to evade duty payment. However, the Tribunal noted that there was no corroborative evidence supporting the allegation of clandestine removal. The absence of evidence such as statements from transporters or buyers, which could be verified by the Revenue, led the Tribunal to conclude that the penalty for suppression of facts with the intent to evade duty was not sustainable. Therefore, the penalty was dropped due to lack of substantiating evidence.

Issue 3: Duty demand, interest, and penalty imposition
After confirming the shortage of M.S. Scrap, the Tribunal upheld the duty demand. However, in the absence of concrete evidence to support the allegation of clandestine removal, the penalty was deemed not leviable and was consequently dropped. The Tribunal disposed of the appeal based on these findings, emphasizing the importance of corroborative evidence in establishing allegations of clandestine activities to evade duty payment.