2012 (11) TMI 1036 - AT - Central Excise

Duty demand - Shortage of M.S. Ingots - Clandestine removal of goods - Held that - it is the revenue who is making the allegation of shortages in final product and consequent clandestine removal. As such, the onus to show that such shortages were arrived at after actually weighing the entire stock is on the revenue. No inventories stand produced by the revenue to show the actual weighment. Merely because Shri Tiwari in his on the spot statement has accepted the shortages cannot be, by itself made the sole basis for upholding the charges against the appellant. - there is no other evidence on record to reflect upon the clandestine activity of the appellant. It is well settled that such allegations are required to be proved by positive and sufficient evidence. There is virtually nothing on the record to show procurement of raw- material to manufacture such a huge quantity of final product. Statements of neither the workers, nor the transporters have been recorded. The buyers of the ingots have not been identified and their statements not recorded. As such, I find no justifiable reasons to uphold the demand on shortages of ingots or to impose penalty on the appellant - Decided in favour of assessee.

Summary

Issues: Duty demand on M.S. Ingots, duty demand on runners and risers, penalty under Section 11AC of the Central Excise Act, 1944.

Duty demand on M.S. Ingots:
The central excise officers visited the appellant's factory and found a shortage of M.S. Ingots and runners and risers. The duty demand on M.S. Ingots was confirmed, and the appellant paid the duty. The Assistant Commissioner confirmed the duty demand on runners and risers along with interest and imposed a penalty under Section 11AC. The Commissioner (Appeals) upheld the Assistant Commissioner's order. The appellant argued that the shortage of runners and risers was based on estimation, not actual shortage, and that they were eligible for full duty exemption under Notification No. 67/95-C.E. The Revenue contended that both items' weights were determined by actual weighment, showing a significant shortage. The Tribunal found that the Revenue failed to produce evidence of actual weighment to prove shortages conclusively. The lack of evidence regarding raw material procurement or statements from workers, transporters, or buyers led the Tribunal to set aside the demand on shortages of ingots and the penalty.

Duty demand on runners and risers:
The quantity of runners and risers was estimated by the appellant's employee, and a shortage was determined based on this estimation. The appellant argued that as the runners and risers were captively used for manufacturing M.S. Ingots, they were exempt from duty under Notification No. 67/95-C.E. The Tribunal agreed with the appellant's argument and set aside the demand on runners and risers along with the penalty, allowing the appeal with consequential relief.

Penalty under Section 11AC of the Central Excise Act, 1944:
The Assistant Commissioner imposed a penalty under Section 11AC on the appellant. The Tribunal found that the Revenue's allegations of shortages and clandestine removal were not adequately supported by evidence. The Tribunal set aside the penalty, emphasizing the lack of substantial evidence to uphold the penalty. The Tribunal's decision was based on the principle that allegations of clandestine activities must be proven with positive and sufficient evidence, which was lacking in this case.