2012 (1) TMI 131 - AT - Central Excise

Duty demand - Shortage of raw material - Clandestine removal of goods - Held that - admittedly the shortage of raw material detected at the time of visit by the officers are not sufficient to manufacture the quantity of final products, on which the demand stands confirmed by the lower authorities. To confirm the demand based upon the shortage, only one raw material which is not main raw material, cannot be sustained, especially in the absence of evidence showing procurement of other raw materials, required for manufacture of final products. As such, I am of the view that there is no infirmity in the order of the Commissioner (Appeals) - Decided against Revenue.

Issues:
1. Demand of duty and penalty dropped by the Commissioner (Appeals).
2. Confirmation of duty on the basis of shortage of raw materials.
3. Imposition of penalty by the Assistant Commissioner.
4. Appeal against the order by the Revenue.
5. Decision of the Appellate Authority on duty confirmation based on raw material shortage.
6. Grounds of appeal by the Revenue challenging the dropping of demand.
7. Consideration of raw material shortage for final product manufacture.
8. Decision of the Tribunal on the Revenue's appeal.

Issue 1: Demand of duty and penalty dropped by the Commissioner (Appeals).
The Commissioner (Appeals) dropped the demand of duty of Rs. 2,36,673/- along with setting aside the penalty of the same amount, leading to the Revenue filing an appeal against this decision.

Issue 2: Confirmation of duty on the basis of shortage of raw materials.
The Revenue initiated proceedings against the respondent for confirming duty on final products found short and raw materials allegedly used in clandestine removal. The Assistant Commissioner confirmed the demand of Rs. 1,03,067/- for final products and Rs. 2,36,673/- for raw materials, along with penalties.

Issue 3: Imposition of penalty by the Assistant Commissioner.
The Assistant Commissioner imposed penalties along with confirming the duty demands, leading to an appeal by the respondent against this decision.

Issue 4: Appeal against the order by the Revenue.
The Revenue filed an appeal against the dropping of demand and penalty by the Commissioner (Appeals), contesting the decision based on shortage of raw materials.

Issue 5: Decision of the Appellate Authority on duty confirmation based on raw material shortage.
The Appellate Authority upheld the demand and penalties for final products but questioned the confirmation of duty based on shortages of raw materials. The Authority highlighted discrepancies in calculating the quantity of Pan Masala that could be manufactured from the found raw material shortages.

Issue 6: Grounds of appeal by the Revenue challenging the dropping of demand.
The Revenue argued that the utilization of the found raw materials in final product manufacture cannot be ruled out, emphasizing the lack of explanation from the respondent on the physical shortage of raw materials.

Issue 7: Consideration of raw material shortage for final product manufacture.
The Tribunal analyzed the shortage of raw materials detected during the visit, concluding that the shortage was insufficient to manufacture the final product quantity for which demand was confirmed. The Tribunal emphasized the necessity of evidence showing procurement of other required raw materials.

Issue 8: Decision of the Tribunal on the Revenue's appeal.
After considering submissions from both sides, the Tribunal found no infirmity in the Commissioner (Appeals) order. The Tribunal rejected the Revenue's appeal, highlighting that confirming demand based on a shortage of only one raw material, which is not a primary raw material, without evidence of other procurements, is unsustainable.

This detailed analysis covers the various issues involved in the legal judgment, providing a comprehensive understanding of the case and the decisions made at each stage of the appeal process.

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