2008 (4) TMI 774 - AT - Central Excise

Summary

Issues:
Demand of duty on excess despatched cement bags.

Analysis:
The appeal was filed by the revenue against the order in appeal regarding the demand of duty on the excess despatched cement bags by the respondent. During an audit, it was found that there was a difference in weight between the invoice and the weighment slip, indicating excess clearance of cement by the respondent. The adjudicating authority confirmed the demand, imposed a penalty, and ordered interest recovery. The respondent appealed to the Commissioner (Appeals), who set aside the original order, leading to the revenue's appeal.

The revenue argued that the respondent did not disclose the removal of excess finished goods and should pay duty regardless of charging the customer. They cited a Tribunal case where excess dispatch was held liable for duty. The respondent defended that the weight difference was within the permissible limit under the Standards of Weights and Measures Act. They referred to a similar case where the Tribunal ruled in favor of the assessee and provided an affidavit on their factory practice.

The Commissioner (Appeals) found that the weight difference was minimal and within permissible limits, granting the respondent the benefit of doubt. They noted that the duty was on ad-valorem basis and no evidence of extra payment received. The Commissioner's decision was based on the weighbridge standards and lack of evidence of clandestine removal of goods. The Tribunal upheld the Commissioner's decision, emphasizing the minimal weight discrepancy and lack of evidence of knowingly dispatching excess quantity.

In conclusion, the Tribunal rejected the revenue's appeal based on the division bench's decision in a similar case. They upheld the Commissioner's decision, noting the minimal weight difference and lack of evidence of intentional excess dispatch. The Tribunal's decision was in line with the permissible weight variations and the absence of evidence supporting the revenue's claim.

This detailed analysis covers the issues of duty demand on excess despatched cement bags, the arguments presented by both sides, the Commissioner (Appeals) decision, and the Tribunal's final ruling based on relevant legal precedents and factual considerations.