2013 (4) TMI 331 - AT - Central Excise

The issue involved in this case is regarding the discharge of differential duty which has been worked out by the lower authority based upon the difference between the theoretical yield and the actual yield as recorded by the appellant of a bulk drug intermediate. - Held that It shows that the findings arrived at by the adjudicating authority are on the basis of assumptions and presumptions and in the absence of any independent evidence, cannot be upheld. Decision of the Tribunal in the case of Swati Polyester 2005 (8) ELT 216 (Tri. Mumbai) would also be applicable in this case as the confirmation of the differential duty is based upon the assumption made. I find that the impugned order is unsustainable and is liable to be set aside. The impugned order is set aside and the appeal is allowed.

Summary

Issues:
Discharge of differential duty based on manufacturing discrepancies.

Analysis:
1. The appeal challenged the imposition of Central Excise duty amounting to Rs.4,89,631/- due to a discrepancy of 47.9 Kgs in the quantity of finished goods manufactured compared to the input received from the job worker. The appellant claimed the variation was due to process loss, but the Audit Officers suspected clandestine removal without payment of duty.

2. The show cause notice demanded the duty, interest, and penalty under Rule 25 of Central Excise Rules, 2002. The adjudicating authority confirmed the demand, and the first appellate authority upheld it. However, the Tribunal remanded the matter for denovo proceedings, leading to a reduced duty demand of Rs.1,60,605/- by the first appellate authority along with interest and penalty.

3. The main issue revolved around the differential duty of Rs.1,06,651/- calculated based on the difference between theoretical and actual yield of a bulk drug intermediate. The chartered engineer's certificate supported the appellant's production figures, indicating no evidence of excess manufacturing or removal of goods from the premises clandestinely.

4. The counsel argued that the demand was based on assumptions and presumptions without concrete evidence of clandestine activities. Referring to relevant case laws, including the Tribunal's decisions in similar matters, the counsel contended that charges of clandestine activities must be corroborated by independent evidence, which was lacking in this case.

5. The Department reiterated the lower authorities' findings, but the Tribunal, after considering both sides' submissions and the records, found the demand unsustainable. The Tribunal cited precedents emphasizing the need for corroborative evidence in cases of alleged clandestine activities and highlighted the absence of such evidence in the present matter.

6. The Tribunal concluded that the demand was based on assumptions and presumptions without independent evidence to support the allegations of clandestine removal. Relying on relevant case laws and the lack of concrete proof, the Tribunal set aside the impugned order, allowing the appeal against the differential duty demand.

7. In summary, the Tribunal found the imposition of duty unjustified due to insufficient evidence of clandestine activities and discrepancies in manufacturing processes. The decision highlighted the importance of concrete proof and independent evidence in tax disputes involving manufacturing differentials to avoid unfounded assumptions leading to erroneous duty demands.