2010 (6) TMI 577 - AT - Central Excise

Clandestine removal - Demand - Valuation of goods - the appellants had not disputed entries in the security register and department is able to establish a case of clandestine removal to such degree of probability that a prudent man, on its basis, believes in the existence of the fact in issue - On perusal of the statements recorded by the authorities of the various staff of the appellant at Unit No. II, it is seen that everyone has admitted that the appellant used to clear bulk mix of protein beverages to their Unit No. I only and there has been a practice of raising invoice once in a month for the entire clearance made to Unit No. I - Held that the investigation has failed woefully to bring the charge of clandestine removal of bulk mix from Unit No. II to Unit No. I As regards the valuation - Rule 4 of the Valuation Rules, 2000 will not get attracted but, provisions of Rule 8, wherein the valuation based upon the cost of production needs to be arrived at, will get attracted Regarding samples - Held that the Invoice No. 718 of 28-2-2006 of unit no. II does not indicate that the appellant had cleared sample pouches filled with the protein mix beverages - It is also seen from the records that the invoice dated 28-2-2006 is for a period, which is subsequent to the period in dispute before us. i.e. period in dispute before us is 2004-05, 2005-06 (upto January, 2006) - Decided in favor of the assessee

Issues Involved:
1. Whether the appellant had manufactured and cleared bulk mix of protein beverages to their Unit No. I without payment of duty and without raising invoices.
2. Whether the appellant had cleared Cenvat availed packing materials and inputs without reversing the credit and following the procedure.
3. Whether the appellant had cleared samples of various flavors in the form of pouches without payment of duty to their Unit No. I.
4. Whether the appellant had manufactured and cleared final products, namely Xtra-Mass in unit containers without raising excise invoices and without payment of duty.

Detailed Analysis:

1. Clearance of bulk mix of protein beverages without payment of duty:

The adjudicating authority confirmed the demand based on entries in the outward register maintained by the security and the appellant's inability to explain mismatched figures. The appellant argued that the demand was based on assumptions and lacked corroborative evidence, such as illicit purchase of raw materials or excess electricity consumption. The Tribunal found that the Revenue had not investigated Unit No. I to determine if it had cleared sample pouches without payment of duty. The Tribunal held that the investigation failed to establish clandestine removal, and the demand based on assumptions was unsustainable. The Tribunal also noted that if the bulk mix was cleared to their own unit for further packing, the valuation should be based on cost of production under Rule 8 of the Valuation Rules, 2000, not pro-rata MRP. Thus, the findings on this issue were set aside.

2. Clearance of Cenvat availed packing materials and inputs:

The adjudicating authority concluded that the appellant removed Cenvat availed packing materials and inputs for storage without reversing the credit, as required under Rule 3(4)(b) of CENVAT Credit Rules, 2004. The appellant argued that these goods were stored due to space shortage and informed the Revenue authorities. The Tribunal found no allegation of shortage of such materials and concluded that the demand was based on procedural lapses rather than actual removal. The findings on this issue were also set aside.

3. Clearance of samples of various flavors:

The adjudicating authority confirmed the demand based on an invoice indicating clearance of sachets (samples) from Unit No. II. The appellant contended that Unit No. II lacked machinery to manufacture sample pouches, which were produced in Unit No. I. The Tribunal found that the invoice referred to empty sachets sent to Unit No. I for filling, and no evidence indicated that Unit No. II cleared filled sample pouches. The Tribunal concluded that the demand was unsustainable and set it aside.

4. Duty liability on Xtra-Mass:

The appellant did not contest the duty liability on Xtra-Mass seriously. The Tribunal upheld the duty liability and equivalent penalty for the clearance of Xtra-Mass without payment of duty.

Penalties and Interest:

The Tribunal upheld the equivalent penalty for the Xtra-Mass duty liability but set aside all other penalties and interest related to the other issues. The appeal was disposed of accordingly.

Conclusion:

The Tribunal set aside the majority of the demands and penalties imposed by the adjudicating authority, except for the duty liability and penalty on Xtra-Mass. The findings were based on the lack of corroborative evidence for clandestine removal, procedural lapses without actual removal, and the correct application of valuation rules. The appeal was disposed of in favor of the appellant, except for the issue of Xtra-Mass.

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