2011 (4) TMI 343 - AT - Central Excise

Classification - Time barred - During the scrutiny of the assessee s records it was observed that the assessee was showing large quantity of inputs as damaged or as shortage some of which were shown as shortage/damaged even in job work - Keeping in view the process of manufacture some process loss is inevitable and in the absence of any evidence to the contrary the appellant s contention that the said shortage/damages relates to the process loss has to be accepted - When the entries relating to shortage/damage of inputs is being reflected in the records no mala fide can be attributed to the appellants so as to invoke the extended period of limitation against them - Appeal is allowed

Summary

Issues:
1. Availment of Cenvat credit on damaged/shortage inputs during manufacturing process.
2. Disallowance of modvat credit and imposition of penalty.
3. Interpretation of shortage/damage of inputs as process loss.
4. Invocation of extended period of limitation for demand confirmation.

Analysis:
1. The appellant, engaged in manufacturing detergent powder and cake, was audited for Cenvat credit verification. It was observed that the appellant followed batch wise/lot wise production process involving transfer of liquid raw materials through pipes for manufacturing. The appellant deducted input consumption based on their formula but showed a large quantity of inputs as damaged or shortage, without explaining the cause. The appellant did not reverse the cenvat credit on damaged/shortage inputs, leading to a demand of duty.

2. The show cause notice proposed to disallow wrongly availed modvat credit from August 2004 to October 2006, resulting in duty demand, interest, and penalty imposition. The original adjudicating authority upheld the demand and penalty, which was challenged in the present appeal.

3. The appellant clarified that the words shortage/damaged in their records represented process loss, not actual shortage/damage. Despite explanations, the demand was confirmed based on the sole ground of showing raw materials as damaged/shortage. The absence of evidence supporting actual shortage/damage was cited as a reason for non-acceptance of the appellant's explanation.

4. The demand period was from 1-8-2004 to 31-10-2006, while the show cause notice was issued on 29-5-2008, invoking the extended period of limitation. The appellant's entries regarding shortage/damage of inputs were reflected in records, but no evidence of mala fide intent was found to justify the extended limitation period. Consequently, the demand confirmation was deemed barred by limitation.

In conclusion, the appellate tribunal set aside the impugned order, allowing the appeal and providing consequential relief to the appellants. The judgment emphasized accepting the appellant's explanation of shortage/damage as process loss, highlighting the absence of evidence indicating clandestine clearance of raw materials. The decision also underscored the limitation aspect, ruling that the demand confirmation was not valid due to the absence of mala fide intent and the reflection of shortage/damage entries in records.