2013 (10) TMI 664 - AT - Central Excise

Cenvat Credit - Shortage of Goods Waiver of Pre-deposit - Revenue was of the view that the verification revealed shortages of 317.112 MT of Pig Iron vis-a-vis the balance recorded in RG23A register on which the Cenvat Credit involved Held that - The stock taking had been done in the present of the appellant s the Excise Clerk and at that time he had accepted the said shortages - There is nothing in the record to show that the quantity of the Pig Iron in the stock had been determine only by eye estimation and not by actual weighment - this is a point of fact which can be decided only at the time of the final hearing - the appellant are directed to deposit an amount - On deposit on the amount the requirement of pre-deposit of balance amount of Cenvat Credit demand, interest and penalty shall stand waived for hearing of the appeal Partial stay granted.

Summary

Issues:
1. Shortage of Pig Iron in stock leading to Cenvat Credit demand.
2. Appeal against the order-in-original confirming the demand and penalty.
3. Stay application for waiver of pre-deposit requirement.

Analysis:

Issue 1: Shortage of Pig Iron in stock leading to Cenvat Credit demand
The case involved the appellant, a manufacturer of cast iron products, facing a Cenvat Credit demand due to a shortage of Pig Iron in their stock as discovered during a visit by Central Excise Officers. The Department alleged that the shortage of 317.112 MT of Pig Iron was clandestinely removed without payment of Central Excise Duty, leading to a demand of Rs. 2,59,944/- along with interest and penalties. The Managing Director's statement did not provide a satisfactory explanation for the shortage, leading to the issuance of a Show Cause Notice for recovery.

Issue 2: Appeal against the order-in-original confirming the demand and penalty
Upon the confirmation of the Cenvat Credit demand and penalties by the Jurisdictional Deputy Commissioner and subsequent affirmation by the Commissioner (Appeals), the appellant filed an appeal challenging the orders. During the hearing, the appellant's counsel argued that the shortage was based on eye-estimation without physical weighment, making the duty demand unsustainable. The appellant claimed to have a strong prima facie case in their favor, seeking a waiver of the pre-deposit requirement for the appeal and a stay on recovery.

Issue 3: Stay application for waiver of pre-deposit requirement
The appellant sought a waiver of the pre-deposit requirement, contending that the shortage determination was not based on actual weighment and that the Excise Clerk had contested the allegations. The Department opposed the stay application, emphasizing the findings of the Commissioner (Appeals) and the lack of evidence supporting the appellant's claim of no shortage. The Tribunal directed the appellant to deposit Rs.50,000/- within 8 weeks, after which the pre-deposit requirement for the balance amount of Cenvat Credit demand, interest, and penalty would be waived for the appeal hearing, with recovery stayed pending compliance.

This detailed analysis outlines the key issues of shortage leading to a Cenvat Credit demand, the appeal against the order-in-original, and the stay application seeking a waiver of the pre-deposit requirement, providing a comprehensive understanding of the legal judgment.