2016 (12) TMI 1615 - AT - Central Excise

Clandestine manufacture - evidence - Held that - the appellant had raised several issues for difference between the SION and actual production depending on the factors as quality of raw-materials the industry practices etc.. The allegation of clandestine removal is required to be established by proof of positive evidence - In the present case the department merely proceeded on the basis of SION without examining the facts of the case which are required to be examined by the Adjudicating Authority in the interest of justice - the matter is remanded to the Adjudicating Authority to decide the case - appeal allowed by way of remand.

Summary

Issues:
Alleged clandestine clearance based on Standard Input-Output Norms, sustainability of Show Cause Notice and Order-in-Appeal, application of SION in determining production ratio, absence of concrete evidence for clandestine removal.

Analysis:
The case involved a dispute regarding alleged clandestine clearance by M/s. Synotex Industries, a manufacturer of Zinc Oxide and Zinc Residue, using Zinc Ingot and Dross as raw materials. The Assistant Commissioner confirmed a demand of ?97,355 along with penalties. The appellant argued that previous orders favored them based on the same issue, citing judicial precedents like CCE v. Flock India, Priya Blue Industries Ltd. v. CCE, and Jindal Dye Intermediate Ltd. v. CCE. The appellant contended that the show cause notice and order-in-appeal were void ab-initio due to the finality of previous decisions.

Regarding the merit of the case, the appellant challenged the department's reliance on Standard Input-Output Norms (SION) for determining production ratios. They argued that actual production depends on various factors like machine efficiency, labor skill, and input quality, which may not align with SION averages. The appellant emphasized the need for concrete evidence to support allegations of clandestine removal, referencing cases like Oudh Sugar Mill v. CCE and Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CCE. They highlighted that SION norms should not override actual production figures and that Rule 10 of CER, 2000 on recording 'Daily Production' would become redundant if SION ratios were mandatory.

The Tribunal, after hearing both parties, found that the department's case solely relied on SION without examining the specific facts of the case. The Tribunal emphasized the requirement for positive evidence to establish clandestine removal. Consequently, the matter was remanded to the Adjudicating Authority for a detailed examination of the issues raised by the appellant. The appeal was allowed by way of remand, indicating that a thorough review of the case was necessary to ensure justice.

In conclusion, the judgment focused on the need for concrete evidence in cases of alleged clandestine removal, the importance of considering actual production factors over SION norms, and the requirement for a detailed examination of all issues raised by the appellant for a just decision.