2011 (7) TMI 339 - AT - Central Excise

Demand - clandestine removal - Proof - the appellants submitted that they had given a detailed chart and in the absence of any evidence to support the clandestine removal or non accountal of production duty cannot be demanded on the basis of assumptions and presumptions - Held that - the decision of the Tribunal in the case of Swati Polyester Vs. CCE Surat 2005 -TMI - 54507 - CESTAT WEST ZONAL BENCH MUMBAI wherein in a similar case of demand of duty on the basis of difference between actual production and assumed production a view was taken that there cannot be a demand on the basis of theoretical calculation - Decided in favour of assessee.

Summary

Issues:
1. Discrepancy in raw material consumed and finished products cleared.
2. Demand for duty based on assumptions and presumptions.
3. Consideration of chart submitted by the appellants.
4. Justification of duty demand based on calculations.
5. Applicability of the decision in the case of Swati Polyester.

Analysis:
1. The case involved a discrepancy where the total quantity of POY and yarn oil received by the appellants was more than the quantity of PTY cleared by them, leading to the initiation of proceedings. The impugned order was passed after the matter was remanded by the Tribunal for consideration of the chart submitted by the appellants.

2. The appellant argued that duty cannot be demanded based on assumptions and presumptions without evidence of clandestine removal or non-accountal of production. Reference was made to a previous Tribunal decision where it was held that duty cannot be demanded solely on theoretical calculations of production.

3. The learned DR emphasized the need to consider the chart submitted by the appellants as per the Tribunal's directions in the remand order. The Commissioner's order discussed the tables prepared by the officers and the chart submitted by the appellants, concluding that the appellants failed to explain the difference between raw material consumed and finished products manufactured.

4. The Revenue contended that the duty demand was justified based on calculations of raw materials consumed, possible wastage, production, and actual clearance. The demand was calculated for a specific period, and deductions were allowed for inaccuracies in recorded quantities. The Member considered the calculations but relied on the decision in the case of Swati Polyester to resolve the issue.

5. The Member referred to the decision in the case of Swati Polyester where a duty demand was made on unaccounted quantities using theoretical calculations. The Member noted that the Division Bench's decision in Swati Polyester was binding and applicable in the present case. Since there was no evidence of excess production removal and the demand was solely based on calculations, the appeal was allowed following the precedent set by Swati Polyester.

This detailed analysis of the judgment highlights the issues, arguments presented by both parties, considerations made by the Member, and the application of legal precedents to reach a decision.