2013 (9) TMI 172 - AT - Central Excise

Removal of Finished Goods - Department has issued a demand for removal of finished goods clandestinely without payment of duty - Held that - Only on the basis of difference in production figures between the ER-1 Returns and figures of production, arrived at on the basis of payments made to contractors, would not sufficient to arrive at the conclusion that the said goods were produced and cleared without payment of duty - The entire duty demand was based on the difference between the production shown in the ER-1 Returns and the quantity of production of finished goods, calculated by the department, on the basis of payments made to the Contractors, during the relevant period - There was no other corroborative evidences, like, transport documents, purchasers statements, incriminating records showing clandestine production and removals, etc. were brought to our notice by the Department, to establish the removal of finished goods over a period of five years, without payment of duty. - Stay granted.

Summary

Issues:
Waiver of pre-deposit of duty and penalty under Central Excise Act, 1944 and Central Excise Rules, 2002.

Analysis:
The judgment by the Appellate Tribunal CESTAT KOLKATA involved the issue of waiver of pre-deposit of duty and penalty imposed on the Applicants. The Applicants, M/s C.P Re-rollers and the Director, were seeking waiver of a substantial amount of duty and penalty. The Department alleged clandestine removal of finished goods without payment of duty based on discrepancies in production figures between ER-1 Returns and payments made to Labour Contractors. The Senior Advocate for the Applicants argued that the demand was solely based on assumptions and erroneous calculations, without concrete evidence of goods being cleared without payment of duty.

The Special Counsel for the Department contended that the demand was valid as it was based on invoices raised by the Applicants on their Labour Contractors, and the Applicants failed to adequately explain the discrepancies in production figures. The burden was placed on the Applicants to prove that the goods were cleared on payment of duty. The Special Counsel cited legal precedents to support the Department's position.

After hearing both sides and examining the records, the Tribunal found that the duty demand was primarily based on differences in production figures calculated by the Department from payments made to Contractors. The Tribunal noted that the Director had provided explanations regarding the payment terms with Contractors, indicating that payments were made for production of finished goods. However, the Department did not conduct further investigations or examine the Contractors to verify these statements.

The Tribunal concluded that the Department lacked corroborative evidence, such as transport documents or incriminating records, to establish the alleged clandestine removal of goods without payment of duty. The Tribunal did not agree with the Revenue's argument that admissions of payments to Contractors automatically implied goods were cleared without duty payment. Consequently, the Tribunal found that the Applicants had presented a strong prima facie case for the waiver of pre-deposit of dues. As a result, the pre-deposit of all dues imposed on both Applicants was waived, and the recovery was stayed during the pendency of the Appeal. The Tribunal also allowed both parties to seek an early hearing of the Appeals due to the substantial amount involved.