2012 (2) TMI 436 - AT - Central Excise

Demand of duty - Confiscation of cash - Demand on the ground that the inputs which were found short were used in the manufacture of finished goods and cleared without payment of duty - Held that - shortage arrived at by counting size wise of goods and by taking average weight of one of each category - Further, in the case of shortage of input, in the absence of any evidence on record to show that the same was used in the manufacture of finished goods and cleared without payment of duty, the demand cannot be made on these goods - In the absence of any evidence on record that the amount in question is sale proceeds of clandestinely removed goods, the confiscation is not sustainable - Decided in favour of assessee.

Issues:
1. Upholding demand of duty, interest, and penalty.
2. Confiscation of cash amount recovered.
3. Imposition of penalty under Rule 26 of Central Excise Rules, 2002.
4. Shortage of raw materials and finished goods.
5. Lack of physical weighment conducted.
6. Applicability of previous Tribunal decisions.
7. Confiscation of currency without evidence.

1. Upholding demand of duty, interest, and penalty:
The Appellate Tribunal heard the appeal against the impugned order upholding the demand of duty, interest, and penalty. The Commissioner (Appeals) had confirmed the duty demand, interest, and equal penalty. The Managing Director also appealed against the penalty imposed under Rule 26 of Central Excise Rules, 2002.

2. Confiscation of cash amount recovered:
The officers found a shortage of raw materials and finished goods during a visit to the factory premises. Additionally, a cash amount was recovered from the Managing Director's residential premises. The adjudicating authority confirmed the demand stating that the short inputs were used in finished goods without duty payment. The appeal challenged the confiscation of the cash amount, arguing lack of evidence linking it to clandestine activities.

3. Imposition of penalty under Rule 26 of Central Excise Rules, 2002:
The Managing Director appealed against the penalty imposed under Rule 26 of Central Excise Rules, 2002, contesting its validity in the given circumstances.

4. Shortage of raw materials and finished goods:
The shortage of raw materials and finished goods was noted during the visit to the factory premises, leading to the demand for duty payment. The contention was raised regarding the method of calculating the shortage without actual physical weighment.

5. Lack of physical weighment conducted:
The appellants argued that the shortage was determined without physical weighment but based on average unit weights. They cited previous Tribunal decisions to support their claim that demands based on average weights are not sustainable without actual weighment.

6. Applicability of previous Tribunal decisions:
The appellants relied on previous Tribunal decisions to argue against the demands made based on average weights. The Tribunal decisions cited set aside similar demands, emphasizing the importance of actual weighment for accurate calculations.

7. Confiscation of currency without evidence:
Regarding the confiscation of the cash amount, the Managing Director explained it was for family expenses, not proceeds from clandestine activities. The Tribunal found no evidence linking the cash to illicit activities, leading to the conclusion that the confiscation was not sustainable. As a result, the impugned order was set aside, and the appeals were allowed.

This detailed analysis of the judgment covers the various issues involved, including the demand of duty, penalty, and interest, the confiscation of cash, shortage of materials, lack of physical weighment, reliance on previous decisions, and the confiscation of currency without proper evidence.

← Previous Next →