2012 (4) TMI 412 - AT - Central Excise

Shortages of raw material and finished goods noticed at Factory premises - Director of the company present at the time of stock checking accepted the shortages - further follow-up statements of the director admitted the illicit clearances of the finished goods and raw materials - confirmation of demand of duty, interest thereof and equal amount of penalty on the assessee-appellant, and penalty imposed on the individual appellant Rs.50,000/- Held that - the statement of director present at the time of stock checking clearly indicates that clandestine removal of the raw materials as well as the finished goods have taken place and the amount for the same received in cash, thus the lower authorities were correct in coming to the conclusion that the appellant is liable to discharge duty liability on such clandestinely removed goods - benefit of Section 11AC to the appellant company is correct, legal and does not suffer from any infirmity - penalty imposed on the individual appellant, i.e Director Rs.50,000/- is reduced to Rs.25,000/-

Summary

Issues:
1. Clandestine removal of raw material and finished goods.
2. Admissibility of statements made by the director.
3. Imposition of duty, interest, and penalty.
4. Reduction of penalty on the individual appellant.

Analysis:

Issue 1: Clandestine removal of raw material and finished goods
The case involves the discovery of shortages of raw material and finished goods during a stock check at the appellant's factory. The director of the company admitted to the shortages and illicit clearances of goods. The appellant challenged the Panchnama recording the shortages, arguing that certain items were of gaseous or corrosive nature and could not have been stored at nil stock. The director's statements confirmed the clandestine removal and sale of goods without proper documentation or payment of duty. The tribunal found that the director's unretracted statements clearly indicated the clandestine removal of goods, leading to the confirmation of duty liability, interest, and penalty on the appellant company. The tribunal upheld the lower authorities' decision, considering the evidence and lack of retraction by the director.

Issue 2: Admissibility of statements made by the director
The director's statements during the Panchnama and subsequent follow-up interviews played a crucial role in establishing the clandestine removal of goods. The director's detailed admission of selling the short goods in the open market without proper documentation or payment of duty provided substantial evidence against the appellant. The tribunal noted that the director did not retract these statements at any point, reinforcing their admissibility and significance in determining the duty liability and penalty.

Issue 3: Imposition of duty, interest, and penalty
Both the adjudicating authority and the first appellate authority confirmed the demand for duty, interest, and penalty on the appellant company. The tribunal agreed with the lower authorities' decision, citing the director's unambiguous statements acknowledging the clandestine removal and sale of goods. The tribunal found the imposition of duty, interest, and 25% penalty on the appellant company to be legally sound and upheld the order-in-appeal in this regard.

Issue 4: Reduction of penalty on the individual appellant
The first appellate authority reduced the penalty imposed on the individual appellant, the director of the company, to Rs.50,000. However, the tribunal deemed this amount disproportionate to the duty confirmed against the company. Considering the circumstances, the tribunal reduced the penalty on the individual appellant to Rs.25,000 to align with the duty liability imposed on the company. This adjustment was deemed appropriate to ensure justice in the case.

In conclusion, the tribunal upheld the duty liability, interest, and penalty on the appellant company for clandestine removal of goods based on the director's unretracted statements. The penalty on the individual appellant was reduced to maintain proportionality with the duty confirmed against the company, ensuring a fair outcome in the matter.