2016 (11) TMI 1488 - AT - Central Excise

Shortage and excesses of stock - confiscation - penalty - Held that - there are marks of manipulation in the said statement where estimated word is struck off at several places, as a result it appears to me that all the figures given by Mr. Sinha were estimated figures and by eliminating word estimated the authorities issued show cause notice treated them as physically verified weighment of the raw materials and finished goods and on such presumptions the SCN was issued, therefore, the SCN is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Allegations in show cause notice, demand of Central Excise duty, penalty imposition, confiscation of goods, manipulation in statement, sustainability of show cause notice.

Allegations in Show Cause Notice:
The appellants were issued a show cause notice proposing confiscation of finished goods and demanding Central Excise duty under Section 11A of the Central Excise Act, 1944. The notice also included penalties under various sections for alleged shortages and excess quantities of raw materials and finished goods found during a visit by Central Excise officers.

Confiscation and Penalty Imposition:
The Original Authority ordered the confiscation of seized finished goods and imposed penalties on the company and directors based on the allegations in the show cause notice. The penalties included a significant amount on the company and lesser amounts on the individual directors under different provisions of the Central Excise Act, 1944 and Central Excise Rules, 2002.

Appeal to Commissioner (Appeals):
The appellants appealed the Original Authority's decision to the Commissioner (Appeals), who upheld the Order-in-Original and rejected the appeals. The Commissioner's decision was based on the findings and penalties imposed by the Original Authority.

Manipulation in Statement:
During the proceedings, it was highlighted that there were manipulations in the statement recorded from one of the appellants, where the word "estimated" was struck off in several places. This raised doubts about the accuracy and reliability of the figures provided in the statement and their use as evidence in the show cause notice.

Sustainability of Show Cause Notice:
Upon careful examination, it was observed that the manipulations in the statement led to the figures being treated as physically verified, whereas they were initially estimated. This discrepancy raised concerns about the basis of the show cause notice and its sustainability, leading to the setting aside of the Order-in-Original and Order-in-Appeal, with all three appeals being allowed.