2010 (11) TMI 171 - AT - Central Excise

Demand - Clandestine removal - It is now a settled law that any charge of clandestine removal on the basis of shortages found on stock verification is required to be proved by corroborative evidence - In such a scenario, the lower authorities have come to a correct finding that such shortages may lead to suspicion but in the absence of any positive and tangible evidence as regards clandestine removal, the allegations cannot be upheld - There is no inventory on record and no details as to how such a huge quantum was verified by the officers - Decided in the favour of the assessee

Summary

Issues:
1. Shortage in final product leading to duty demand and penalty imposition.
2. Adjudication based on eye estimation vs. physical weighment.
3. Requirement of corroborative evidence for charges of clandestine removal.
4. Sufficiency of manager's statement as evidence.
5. Lack of tangible evidence for clandestine removal.

Issue 1: Shortage in final product leading to duty demand and penalty imposition
The case involved a respondent engaged in manufacturing Black Steel Pipes and Tubes where a shortage of 51.850 MT of final product was found during a visit by Central Excise officers. The duty amounting to Rs. 2,76,000/- for the shortage was admitted by the factory manager and subsequently deposited by the respondent. A show cause notice was issued alleging clandestine removal, leading to duty demand and penalty imposition. The Adjudicating Authority dropped the charges due to shortages being based on eye estimation and lack of corroborative evidence.

Issue 2: Adjudication based on eye estimation vs. physical weighment
The Commissioner (Appeals) rejected the Revenue's appeal, emphasizing the need for precision in verifying stock shortages. The absence of proper physical weighment and errors in eye estimation were highlighted. The Commissioner stressed that stock shortages must be verified with precision and that eye estimation alone is not sufficient. The reliance on eye estimation without physical weighment was deemed unreliable, citing various legal precedents.

Issue 3: Requirement of corroborative evidence for charges of clandestine removal
The judgment underscored the necessity of corroborative evidence to prove charges of clandestine removal based on stock shortages. The Revenue solely relied on the manager's admission of shortages, but the statement did not confirm clandestine removal. The absence of tangible evidence for clandestine removal led to the rejection of the Revenue's appeal.

Issue 4: Sufficiency of manager's statement as evidence
While the manager admitted shortages, the statement did not provide evidence of clandestine removal. The lower authorities correctly concluded that shortages may raise suspicion but without concrete evidence of clandestine removal, the allegations could not be upheld. The lack of indicated mode of weighment and inventory details further weakened the Revenue's case.

Issue 5: Lack of tangible evidence for clandestine removal
The judgment highlighted the Revenue's failure to present evidence corroborating clandestine removal beyond the manager's statement. The absence of specifics regarding weighment methods and inventory verification undermined the Revenue's case. The lower authorities' decision was upheld due to the insufficiency of evidence regarding clandestine removal, leading to the rejection of the Revenue's appeal.