2011 (4) TMI 1100 - AT - Central Excise

Clandestine manufacture and removal Held that - production loss recorded in excess of such loss usually seen in another factory, in three months during the phase where a new factory is not reason enough to conclude that there was clandestine manufacture and removal. Considering the teething troubles that every factory faces in the initial months of commissioning in its production processes, something more will be required to shift the burden to the assesse to prove that there was no such clandestine activity, full waiver of deposit of the demand made in the impugned order for admission of the Appeal, stay on collection of such demand made by the impugned order till the disposal of the Appeal

Summary

Issues Involved:
Allegations of clandestine manufacture and removal of Mild Steel Ingots during a specific period. Evaluation of evidence including payments to contractors, consumption of ingot mould and electricity, and excess burning loss. Adjudication of duty evasion and penalties imposed. Defense based on teething problems during the initial production phase. Consideration of evidence and burden of proof in proving clandestine activity.

Analysis:
The case involved allegations of clandestine manufacture and removal of Mild Steel Ingots against the Appellant during a specific period. The Revenue based their case on various factors, including payments to contractors, consumption of ingot mould and electricity, and excess burning loss. The duty evasion was calculated using the contractor payment ratio, leading to a demand for duty payment along with interest and penalties.

During adjudication, the authority found that while some factors were not sufficient to prove clandestine activities, the excess burning loss was considered a good indicator. The duty amount was confirmed, penalties were imposed, and the Appellant appealed the decision. The main defense presented was the teething problems faced during the initial production phase, leading to losses at various stages.

The Appellants argued that the excess burning loss was due to genuine production issues and could not solely prove unaccounted production and clearance. They emphasized the lack of concrete evidence supporting the allegations. The Respondents highlighted the challenges of proving clandestine activities and the Supreme Court's stance on the burden of proof.

After considering both sides, the Tribunal noted that the excess production loss alone was not sufficient to establish clandestine activities, especially considering the teething problems faced by new factories. The balance of evidence favored the Appellant, and the Tribunal granted a full waiver of the demand made in the impugned order for admission of the Appeal. A stay was placed on the collection of the demand until the Appeal's disposal.