2012 (9) TMI 876 - AT - Central Excise

Clandestine removal of goods - whether the statement accepting the shortages can be held to be a conclusive proof of actual shortages - Held that - Tribunal in the case of Nilesh Steel & Alloys P. Ltd. reported as 2008 (3) TMI 572 - CESTAT MUMBAI has held that such shortages detected on eye estimation basis cannot be held to be conclusive proof of clandestine removal. To the same effect is the decision of the Tribunal in the case of UP Alloys P.Ltd. reported as 2007 (3) TMI 439 - CESTAT NEW DELHI . It was held that inasmuch as no actual weighment was done in respect of loose sponge iron lying in the factory shortages cannot be held to be actual. By following the ratio of above decisions as also by observing that the charges of clandestine removal cannot be upheld on mere shortages - Decided in favour of assessee.

Summary

Issues involved: Duty demand based on shortages in final products and raw material; Acceptance of shortages by appellant; Conclusive proof of shortages based on statement; Tribunal's decisions on shortages and clandestine removal.

Analysis:
1. Duty Demand Based on Shortages: The appellant, engaged in manufacturing MS Ingots, faced proceedings for a duty demand of Rs. 1,67,801 due to shortages of Runner, Riser, Sponge Iron, and Pig Iron found during a physical verification. The shortages were estimated to involve duty amounts of Rs. 10,421, Rs. 85,000, and Rs. 72,000 approximately. The original adjudicating authority confirmed the demand and imposed a penalty, a decision upheld by the Commissioner (Appeals), leading to the present appeal.

2. Acceptance of Shortages: The appellant contended that duty demand could not be based on shortages in final products and raw material, arguing that the shortages were only estimated visually and not based on actual weighment. However, the authorities rejected this argument as the appellant's representative had accepted the shortages in a statement.

3. Conclusive Proof of Shortages: The central issue in the appeal was whether the statement accepting the shortages could be considered conclusive proof of actual shortages. The Tribunal noted that there was no evidence in the Panchnama to indicate that all stock was weighed, and no inventory of weighment was conducted by the appellant. The statement merely acknowledged the shortages as recorded, without admitting to clandestine removal.

4. Tribunal's Decisions on Shortages and Clandestine Removal: Citing precedents, the Tribunal highlighted that shortages detected on an eye estimation basis could not be deemed conclusive proof of clandestine removal. Referring to cases like Nilesh Steel & Alloys P. Ltd. and UP Alloys P. Ltd., where actual weighment was crucial to establish shortages, the Tribunal concluded that mere shortages without weighment could not support charges of clandestine removal. Consequently, the Tribunal set aside the impugned order, allowing the appeal and granting consequential relief to the appellant.

In conclusion, the judgment focused on the lack of concrete evidence to support the duty demand based on shortages, emphasizing the importance of actual weighment to establish shortages conclusively. The decision underscored the need for proper documentation and procedures in excise matters to avoid erroneous conclusions based on visual estimations alone.