2013 (11) TMI 882 - AT - Central Excise

Clandestine removal of goods Physical weightment of goods - Held that - Demand of duty on the goods found short during the course of physical verification by central excise officers - The duty involved on the goods has already been paid by the appellant and also appropriated by the lower authorities and penalty is imposed under Rule 25 of the Central excise Rules, 2002 on the appellant - Physical verification of the goods was done by the officers on 30.11.2007 - The weight of the goods found short was ascertained on the basis of number of pipes and tubes found short multiplied by the sectional weight mentioned in the catalogue of the appellant themselves - There is no substance in the arguments of the appellant that no actual weighment was done by the Department during the course of verification order upheld with regard to demand of duty as well as the confirmation of penalty against the appellant Decided against Assessee.

Issues:
Demand of duty on goods found short during physical verification by central excise officers, challenge regarding the method of quantification of shortage, reliance on previous tribunal decisions regarding duty deposit as proof of confession.

Analysis:

Issue 1: Demand of Duty on Short Goods
The appeal was filed against an order confirming the duty demand on 17.969 MT of steel pipes and tubes found short during a physical stock verification at the factory of M/s. Jyoti Divya Fabrication Ltd. The duty amount of Rs.6,27,793/- was confirmed by the Asst. Commissioner and upheld by the Commissioner (Appeals). The appellant contested the case on the grounds of lack of actual weighment of goods by the departmental officers during verification, arguing against a case of clandestine removal. However, the Tribunal noted that physical verification was conducted in the presence of witnesses and the appellant's representative. The weight of the shortage was calculated based on the number of pipes and tubes multiplied by sectional weight from the catalogue, a method not disputed during verification. The appellant's satisfaction with this method and the duty debited on the shortage supported the department's actions, leading to the rejection of the appellant's challenge.

Issue 2: Method of Quantification of Shortage
The appellant argued that the shortage quantification was based on numbers and sectional weights without actual weighment, questioning the reliability of late-night recorded statements. However, the Departmental Representative pointed out that the company representative signed the Panchnama without objections, and Mr. Mahesh Singh admitted the shortage and paid the duty. The Tribunal found no merit in the appellant's claim, emphasizing the established method of quantification accepted during verification and upheld the duty demand and penalty imposed under Rule 25 of the Central Excise Rules, 2002.

Issue 3: Reliance on Previous Tribunal Decisions
The appellant cited previous tribunal decisions where the deposit of duty was not considered proof of confession in cases of clandestine removal. However, the Tribunal differentiated each case of clandestine removal, emphasizing the unique facts and circumstances. It concluded that the decisions on other cases could not be directly applied here, supporting the order-in-appeal and rejecting the appeal based on the specific circumstances of the present case.

In conclusion, the Tribunal upheld the duty demand and penalty against M/s. Jyoti Divya Fabrication Ltd., emphasizing the validity of the quantification method used during physical verification and dismissing the appellant's challenges based on previous tribunal decisions.

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