2010 (11) TMI 282 - AT - Central Excise

Demand of duty, interest and penalty - Non-accountable of goods - Shortage of inputs can explain excess of finished goods - Shortage of inputs cannot explain shortage of finished goods - When the officers visited, the premises of the factory, a huge shortage of inputs has been noticed - When the officers visited the factory again, this time, for a change, they noticed shortage of finished goods -The director of the Company made a feeble attempt to link the inputs goods found to the shortage of finished goods - The investigating officers however, did not deem it necessary to continue further investigation, show cause notice has been issued of course, invoking the provisions of Section 11AC as well - Do not find any justification whatsoever to link the shortage of finished goods with the shortage of inputs - Shortage of inputs can explain excess of finished goods. Shortage of inputs cannot explain shortage of finished goods - Thus it is a clear case of non-accounted shortage and penalty is warranted under Rule 25(1)(b) - However, no evidence has been relied upon by the department justifying invokation of provisions of Section 11AC - Decided in favour of assessee.

Summary

Issues:
1. Appeal by M/s. S.K. Sacks Pvt. Ltd. against the order of the Commissioner (Appeals) for demand of duty and penalty.
2. Department's appeal seeking enhancement of penalty.
3. Justification of demand of duty and penalty imposition.
4. Interpretation of provisions under Rule 25 of Central Excise Rules and Section 11AC of the Central Excise Act.
5. Assessment of evidence and justification for penalty imposition.

Analysis:
1. The appeal by M/s. S.K. Sacks Pvt. Ltd. contested the demand of duty and penalty upheld by the Commissioner (Appeals). The shortage of inputs and finished goods noticed by officers on different occasions formed the basis of the dispute. The party argued that duty is payable only upon goods' removal under Rule 4 of Central Excise Rules, questioning the justification for the demand of duty and penalty. They cited relevant case laws to support their position.

2. The department filed an appeal seeking an increase in the penalty imposed. They argued that Section 11AC should be invoked, emphasizing the party's habitual non-compliance and the need for stringent penalty. The department contended that the shortage of inputs on one date should not excuse the shortage of finished goods on another date.

3. The judgment carefully analyzed the facts and submissions from both sides. It noted the significant shortages of inputs and finished goods observed by officers on separate occasions. The director of the company attempted to link the shortages, but the investigating officers did not pursue this connection further. The duty amounts related to the shortages were paid before adjudication, but the penalty imposition was disputed.

4. The judgment interpreted the provisions of Rule 25 of Central Excise Rules and Section 11AC of the Central Excise Act. It highlighted the manufacturer's obligation to account for goods manufactured and the strict liability for non-accounted shortages. The decision differentiated between shortage of inputs and shortage of finished goods, emphasizing the need for evidence to substantiate clandestine removal.

5. The judgment concluded that while penalty under Rule 25(1)(b) was warranted for non-accounted shortage, there was insufficient evidence to invoke Section 11AC. It upheld the demand of duty and interest, along with the penalty imposed by the Commissioner (Appeals). Both the party's appeal to set aside the penalty and the department's appeal for penalty enhancement were rejected based on the analysis of the facts and legal provisions.

In summary, the judgment upheld the Commissioner (Appeals) decision, rejecting both the party's and the department's appeals against the impugned order.