2010 (10) TMI 131 - HC - Central Excise

Clandestine removal Shortage of goods - stock verification disclosed a book stock of 1214.579 metric tons when the physical stock available was only 123.500 metric tons of clinkers - shortage of clinkers at the time of inspection was noted based on the stock register, that such inspection was carried on in the presence of the senior officials, who did not raise any protest at the time of stock taking - actual manufacture of cement not brought into accounts Held that - The inference drawn by the second respondent based on shortage of clinkers and the excess quantity of limestone quarried during the relevant period was sufficient enough for the authorities to conclude as to the ultimate quantity of Portland cement which could have been produced from such excess quantity, which were not noted in the stock register, was well justified and we do not find any illegality or irregularity in such a conclusion drawn by the authorities for the levy of duty and the demand of duty imposed

Summary

Issues:
Challenge to excise duty demand based on shortage of clinkers and alleged clandestine removal of cement without duty payment.

Analysis:
The appellant, a cement factory, challenged an excise duty demand of Rs. 23,04,994 based on a shortage of clinkers. The appellant, a Small Scale Industry unit, availed exemption benefits under Notification No. 175 of 1986 for concessional excise duty rates. An inspection revealed discrepancies in clinker stock, leading to a show cause notice proposing duty demand, penalty, and interest. The Order-in-Original demanded Rs. 23,04,994 as duty and an equal penalty. The appellant appealed, and the first respondent partially allowed it, reducing the duty to Rs. 13,04,994. The appellant contested the order, arguing against the justification for duty imposition.

The main issue focused on the abnormal shortage of clinkers leading to excess cement production allegedly clandestinely removed without duty payment. The appellant contended that the shortage did not prove clandestine removal without concrete evidence. The respondent argued that discrepancies in clinker, coke breeze, and limestone quantities supported the claim of clandestine cement removal. The original authority noted officers present during inspection and the appellant's delayed objection to stock discrepancies.

The Court upheld the respondent's decision, emphasizing the lack of satisfactory explanations from the appellant regarding the significant clinker shortage. Discrepancies in raw material quantities, including limestone and coke breeze, indicated irregular stock maintenance and potential clandestine activities. The Court found the authorities' conclusion on clandestine cement production and duty evasion justified based on the evidence presented. The deletion of the penalty by the first respondent was considered a lenient gesture. Consequently, the Court dismissed the appeal, finding no grounds for interference with the respondent's order.