2013 (11) TMI 81 - AT - Central Excise

Clandestine Removal - Removal of goods from the factory without payment of duty Held that - The duty against the same item duty was confirmed in some cases and dropped in other cases, without assigning reasons - The Commissioner in the order has observed that the allegation of clandestine removal cannot solely be on the basis of the records but also depends various other factors - Prima facie the reasoning has been recorded by the Commissioner while confirming the demand of clandestine removal against the applicant discarding their plea of trading of all items cleared/removed to the site - it is a case of appreciation of evidences adduced by the applicant and scrutinized by the adjudicating authority, an exercise which could be well examined at the time of disposal of the appeal. Waiver of Pre-deposit - Prima facie the Applicant could not make out case for total waiver of dues - the Applicant No.1 M/s Nampa Steel directed to deposit an amount of pre-deposit upon such submission the balance dues against both the applicants would stand waived and recovery stayed during the pendency of the appeals Partial stay granted.

Summary

Issues:
Waiver of pre-deposit of total duty and penalty under Section 11AC of CEA, 1944.

Analysis:
The appellant sought waiver of pre-deposit of total duty of Rs.3.1 crores and penalty imposed under Section 11AC of CEA, 1944. The confirmed demand included allegations of clandestine removal of goods without payment of duty and denial of Cenvat credit on Zinc ingots. The appellant, engaged in manufacturing excisable goods, argued that the order suffered from contradictions regarding trading activities. The financial hardship of the appellant was highlighted due to losses incurred in the steel sector. The adjudicating authority reduced the initial demand to Rs.3.1 crores after considering evidence. The appellant's plea for total waiver was not accepted, and they were directed to deposit Rs.40.00 Lakhs within 12 weeks to stay recovery during the appeal process.

Analysis:
The Revenue argued that the case was based on the clandestine removal of goods without payment of duty, supported by evidence from seized private records. The appellant's claim that certain items were considered manufactured and cleared without duty payment was based on assumption and presumption. The adjudicating authority reduced the demand from around Rs.12 crores to Rs.3.1 crores after analyzing evidence. The appellant's contention that the order was based on assumptions and presumptions was not entirely agreed upon. The Tribunal found that the order was reasoned and based on evidence, rejecting the appellant's plea for total waiver. The appellant was directed to deposit Rs.40.00 Lakhs within 12 weeks to stay recovery during the appeal process.