2011 (2) TMI 581 - AT - Central Excise

Penalty - Confiscation - 100% EOU - Inquiry was made with Shri J. Arora Director of the appellants unit who stated that excess stock of irregular marble slabs may be due to difference in sale/purchase dimensions over the period of one year - As per sub-rule (2) of Rule 17 the EOU is required to maintain a prescribed format an account relating to production giving the description of the goods quantity removed and also the duty paid - It is also plea of the appellant that the excess quantity found is only 0.44% of the total quantity manufactured in year and this cannot be due to deliberate non-accountal - there is no evidence that the appellant had any intention to illicitly remove the excess goods without payment of duty - Appeal is allowed

Summary

Issues:
1. Confiscation of excess stock of marble slabs made from imported and indigenous marble blocks.
2. Imposition of penalties under Central Excise Rules on the appellant company and its director.
3. Appeal against the order of the Commissioner (Appeals) upholding the confiscation and penalties.

Confiscation of Excess Stock:
The appellant, a 100% EOU producing marble slabs, faced excess stock issues during a Central Excise officers' visit. The discrepancy was 21.818 sq. mtrs. of irregular marble slabs from imported blocks and 345.074 sq. mtr. of green marble slabs from indigenous blocks. The appellant's Director attributed the excess to differences in sale/purchase dimensions over a year. The authorities issued a show cause notice for confiscation and penalties under Central Excise Rules. The Commissioner (Appeals) upheld the order, leading to the present appeal.

Imposition of Penalties:
The appellant argued that pre-1-3-2006, marble slab production from blocks wasn't excisable per a Supreme Court judgment. They contended that since the goods were non-excisable, confiscation and penalties were unjustified. The appellant highlighted a Tribunal case precedent and the minimal excess percentage. The Departmental Representative defended the order, citing contravention of Rule 17 for EOUs and invoking Rule 25 penalties for unrecorded production.

Appeal Against Commissioner (Appeals) Order:
After hearing both sides, the Tribunal noted the EOU status subject to Rule 17's record-keeping requirements. Despite discrepancies in recorded and found quantities, the Tribunal found the excess negligible at 0.44% and likely not deliberate. Due to irregular shape complexities and lack of evidence for illicit removal intentions, the Tribunal held the confiscation and penalties unsustainable. Consequently, the impugned order was set aside, and the appeal was allowed.

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