2012 (11) TMI 683 - AT - Central Excise

Enhancement of penalty - Shortage of stock penalty u/r 25 - Held that - So far as shortage of stock is concerned the authority has found that there was no cogent evidence before him to appreciate that the shortage has been rightly worked out mathematically. Estimation is not substitute to the mathematical precision when method of inventory taken is challengeable. - There was no circumstantial evidence to appreciate imposition of penalty along with confiscation. Penalty u/r 10 - When the appellate authority found, that there was controversy and Rule 10 deals with unaccountal of the stock on daily basis he levied penalty of Rs. 50,000/-. The cumulative effect of the shortage and excess stock is quite possible to flow from unaccountal of stock on daily basis - appellate authority went to the root of the matter to penalize to the extent of Rs. 50,000/-. That appears to be proper and that is confirmed - Revenue s appeal is dismissed.

Summary

Issues:
1. Verification of deposit before passing the order.
2. Confiscation, penalty, and redemption fine imposition in case of excess and shortage of goods.
3. Appeal by Revenue against the first appellate order.
4. Justification of penalties imposed under Section 11AC and Rule 25.
5. Review Committee's decision and restoration of adjudication order.

Issue 1: Verification of deposit before passing the order
The application claimed the deposit was made before the order date, but the verification lacked a date. Despite this, the Misc. application was disposed without further direction, considering the deposit was made before the order.

Issue 2: Confiscation, penalty, and redemption fine imposition in case of excess and shortage of goods
The appellant faced adjudication due to excess and shortage of goods. The excess goods were accounted for, leading to the setting aside of confiscation and redemption fine. Penalties under Section 11AC and Rule 25 were not imposed, but a penalty of Rs. 50,000 was levied under Rule 10 of Central Excise Rules, 2002 to deter future offenses.

Issue 3: Appeal by Revenue against the first appellate order
The Revenue was aggrieved by the first appellate order, claiming that confiscation was warranted and penalties under Section 11AC and Rule 25 were justified, seeking restoration of the adjudication order.

Issue 4: Justification of penalties imposed under Section 11AC and Rule 25
The appellate authority found no clear evidence of evasion intention, leading to the conclusion that confiscation was unwarranted. Lack of cogent evidence for the shortage calculation and absence of ill intent by the appellant resulted in the dismissal of penalties imposed under Section 11AC and Rule 25.

Issue 5: Review Committee's decision and restoration of adjudication order
The Learned DR supported the Review Committee's decision and sought the restoration of the adjudication order, while the Counsel for Respondent supported the order of the Commissioner (Appeals). The appellate authority dismissed the Revenue's appeal, confirming the penalty of Rs. 50,000 imposed under Rule 10 due to unaccounted stock on a daily basis, addressing the root cause of the issue.

In conclusion, the judgment upheld the first appellate order, emphasizing the importance of clear evidence and intent in imposing penalties related to Central Excise Rules. The decision highlighted the necessity of proper verification and calculation in cases involving excess and shortage of goods, ensuring penalties are justified and effective in preventing future offenses.