2015 (2) TMI 1211 - AT - Central Excise

Clandestine removal - the burning loss excess of 2% is not correct claimed by the respondents but they have cleared the goods clandestinely in the guise of showing excess burning loss - Held that - the allegation of claim of excess burning loss is alleged in the SCN without any tangible evidence why the burning loss is not more than 2%. But Chief Commissioner, Chandigarh himself observed in the circular dated 13-11-2011 that burning loss in respect of hot re-rolling mill may vary from 1-2% to 6-7% - in such industry burning loss may extend to 6-7% on the basis of certificate from National Institute of Secondary Steel Technology dated 1-9-2011. The same is acceptable and reliable evidence in support of the respondent - charge of clandestine removal fails - appeal dismissed - decided against Revenue.

Summary

Issues:
- Allegation of clandestine removal based on excess burning loss claimed by the respondents.
- Validity of dropping the charge against the respondents by the Commissioner (Appeals).
- Interpretation of circular on burning loss issued by the Chief Commissioner, Chandigarh.
- Reliability of evidence regarding burning loss in the steel re-rolling mill industry.

Analysis:
The Revenue filed appeals against the Commissioner (Appeals) order dropping the charge of clandestine removal against the respondents. The case revolved around the burning loss claimed by M/s. Chopra Steel Strips and M/s. Jai Sidh Yogi Rolling Mills during an audit, where they were claiming burning loss exceeding 2% for their final products. The Revenue alleged that the excess burning loss was a cover for clandestine removal of goods. The adjudicating authority confirmed the duty demand, interest, and penalty. The Revenue contended that the burning loss should not exceed 2% and that the charge against the respondents should not have been dropped.

The Revenue argued that the respondents failed to justify the excess burning loss claimed during the manufacturing process. On the other hand, the respondents' counsel referred to a circular issued by the Chief Commissioner, Chandigarh, stating that burning loss in hot re-rolling mills could vary from 1-2% to 6-7%. The counsel presented a certificate from the National Institute of Secondary Steel Technology supporting the higher burning loss in small-scale steel re-rolling mills due to outdated technology and lack of automation. The Commissioner (Appeals) considered this evidence and concluded that the charge against the respondents was not sustainable without tangible evidence, hence dropping the demand.

The Tribunal examined the facts and evidence presented. It noted that the circular and certificate supported the industry norm of burning loss extending to 6-7% in such mills. The Tribunal found no fault in the Commissioner (Appeals) decision to drop the charge against the respondents based on the reliable evidence provided. Consequently, the Tribunal upheld the impugned orders and dismissed the appeals filed by the Revenue.