2011 (11) TMI 570 - AT - Central Excise

Duty demand - Shortage of goods - Held that - Allegation pleading of the appellant before him was that the factory was under physical control of the department and machine was sealed by Range officer on 28-9-2009 while investigation was conducted on 13-11-2009. Tobacco was no doubt an essential ingredient of cigarettes. The appellant s plea before first appellate authority was that raw material for manufacture of cigarettes resulted with no inventory discrepancy. It was also submitted that cigarettes cannot be manufactured from tobacco alone. But the appellate authority upheld the adjudicating finding that raw material like cigarette paper filter rod and filter paper can be arranged from outside for manufacture of cigarettes - Revenue certainly would have been benefited had they found evidence in respect of removal of goods while physical control of factory was with departmental officers. Such evidence is not on record. Even to apply ratio of judgment of Hon ble High Court of Madras in the case of Alagappa Cement Pvt. Ltd. v. CEGAT Chennai - 2010 (10) TMI 131 - MADRAS HIGH COURT there is no preponderance of probability of tracing of tobacco after that is alleged to have vanished from factory of the appellant which is stated to have been controlled as above. Whereabout of tobacco could not be traced - Decided in favour of assessee.

Summary

Issues: Allegation of shortage of tobacco, duty amount, pre-deposit requirement, appeal against adjudication order, factual position from lower authorities, benefit of preponderance of probability.

In this case, the appellant was alleged to have a shortage of 337.950 kgs of tobacco, resulting in a Central Excise duty amount of Rs. 2,85,084. The appellant argued that the factory was under the physical control of the department, and the machine was sealed by the Range officer during the investigation. The appellant contended that raw material for manufacturing cigarettes did not show any inventory discrepancy, emphasizing that cigarettes cannot be produced from tobacco alone. However, the first appellate authority upheld the adjudicating finding that raw materials like cigarette paper, filter rod, and filter paper could be sourced from outside for cigarette production. The factual position from both lower authorities indicated a lack of evidence regarding the removal of goods while the factory was under departmental control, which would have benefited the Revenue. The absence of evidence regarding the whereabouts of the tobacco handicapped the Revenue's case, leading to the appeal being allowed due to the lack of preponderance of probability in tracing the alleged vanished tobacco.

The Tribunal, considering the pendency of the matter and the palpable dispute without substantive allegations, opted to dispose of the appeal itself, combining the stay application and appeal in a common order. It was noted that waiving the pre-deposit requirement would not prejudice the Revenue's interests. The adjudicating authority's order highlighted the shortage of tobacco and the duty amount, while the appellant's defense centered on the control of the factory by departmental officers and the inability to trace the tobacco after it was alleged to have disappeared. The judgment referenced a case from the High Court of Madras to emphasize the lack of evidence in tracing the tobacco, ultimately leading to the appeal being allowed due to the Revenue's failure to establish the preponderance of probability in their favor.