2011 (5) TMI 721 - AT - Central Excise

Demand - clandestine removal - based upon the calculations arrived at by the department on the basis of electricity consumption - no corroborative evidence - production recorded in their daily production records is more than the normal production. If such excess production is neutralised against short production, as alleged by the Revenue, no duty liability would be cast upon them

Issues Involved:
1. Allegations of clandestine manufacture and removal of MS ingots.
2. Shortage of 40.305 MTs of MS ingots.
3. Basis for demand of duty and imposition of penalty.
4. Validity of the notice on the grounds of assumption and presumption.
5. Limitation period for issuing the notice.

Issue-wise Detailed Analysis:

1. Allegations of Clandestine Manufacture and Removal of MS Ingots:
The Revenue alleged that the appellant was involved in clandestine manufacture and removal of MS ingots without payment of duty. The basis for this allegation was the comparison of electric power consumption with the recorded production. The appellant contended that the production records showed less production on certain days despite similar power consumption due to various factors such as technical failures and the production of inferior quality goods that were re-melted. The Tribunal found that the entire case of the Revenue was based on assumptions and presumptions without substantive and positive evidence of clandestine activities. The Tribunal emphasized that findings of clandestine removal must be based on concrete evidence, not merely on input-output calculations or electricity consumption.

2. Shortage of 40.305 MTs of MS Ingots:
During the inspection, a shortage of 40.305 MTs of MS ingots was found in the appellant's stock. The appellant argued that the shortage was calculated based on the average weight of ingots and not on actual weighment, making the findings unreliable. The Tribunal agreed with the appellant, noting the lack of evidence of any clearance of the said goods and the method of calculating the shortage, which was based on estimations rather than actual weighment.

3. Basis for Demand of Duty and Imposition of Penalty:
The Revenue proposed to confirm a duty demand of Rs. 33,85,420/- along with interest and a penalty of Rs. 98,667/- for the alleged shortage of 40.305 MTs of MS ingots. The appellant contended that the demand was based on assumptions and lacked corroborative evidence. The Tribunal found that the demand was based on mathematical calculations related to electricity consumption rather than concrete evidence of clandestine removal. The Tribunal reiterated that such calculations could not form the basis for confirming the demand or imposing penalties.

4. Validity of the Notice on the Grounds of Assumption and Presumption:
The appellant argued that the notice for clandestine production and removal was issued on assumptions and lacked corroborative evidence. The Tribunal supported this view, stating that the findings of clandestine removal must be based on substantive evidence. The Tribunal referred to various judgments, including the Supreme Court's decision in Triveni Rubber & Plastics v. CCE, Cochin, which held that clandestine removal findings require clear evidence and cannot be based on production suppression or electricity consumption alone.

5. Limitation Period for Issuing the Notice:
The appellant contended that the notice was not sustainable on the grounds of limitation, as they had been regularly filing monthly returns of production and removal. The Tribunal did not specifically address the limitation issue in detail, as it found the entire basis of the demand unsustainable due to the lack of corroborative evidence.

Conclusion:
The Tribunal set aside the impugned order, finding no substantive evidence to support the allegations of clandestine removal or the shortage of MS ingots. The appeal was allowed with consequential relief to the appellant. The judgment emphasized the necessity of concrete evidence for allegations of clandestine activities and rejected the reliance on assumptions and mathematical calculations related to electricity consumption.

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