2014 (9) TMI 411 - HC - Central Excise

Rectification of mistake - Whether while disposing of the application (ROM) moved by the appellant the mistake pointed out in the application (ROM) was found debatable and requires re-appreciation of entire facts on records but the same was rejected on the ground that the Tribunal had no jurisdiction as the scope of the ROM is too limited. The order of the learned Tribunal dated 8.7.2005 is prima facie erroneous in law - Held that - On a perusal of the material available on record, it appears that the excess stock were found during the course of raid/surprise visit by the Department Officers. No satisfactory explanation was given. The Tribunal held that appellant had manufactured and clandestinely removed 278.274 metric tonnes of MTIL marked lead ingots to GPCL without payment of duty. So, the demand of duty on the goods was sustained. The goods were removed in contravention of Rules 9(1), 52A, 53, 173G and 173F with obvious intent to evade the payment of duty, both Sections 11AB (for interest on duty) and Section 11AC (for penalty) stood attracted. So, the MTIL are liable to pay the duty with interest chargeable under Section 11AB and 11AC. Further, the Tribunal observed that MTIL marked ingots 278.274 metric tonnes were not manufactured by by GPCL, but raw material produced by them. The appellant could not show that duty of excise had been paid on the goods - Tribunal has already given the substantial relief to the appellant. There is no scope to grant any further relief either in the name of rectification or otherwise. Hence, we uphold the the impugned orders passed by the Tribunal. - Decided against assessee.

Summary

Issues:
1. Rectification of Mistake Application (ROM) rejection by the Tribunal.
2. Excess stock found during a surprise visit.
3. Allegations of clandestine removal of goods without payment of duty.
4. Liability to pay duty, interest, and penalty.

Rectification of Mistake Application (ROM) rejection by the Tribunal:
The appellant filed an appeal under Section 35-G of the Central Excise Act, 1944, against the order of the Customs, Excise and Service Tax Appellate Tribunal. The substantial question of law admitted by a coordinate Bench pertained to the rejection of the ROM application by the Tribunal. The appellant argued that there were mistakes in the order that needed rectification, specifically related to the weight of ingots seized and the automatic nature of the manufacturing process. The appellant contended that there was no malafide intention and sought rectification of the order. However, the Department-respondent opposed the reopening of the order on merit, claiming it was a finding of fact. The Tribunal upheld its decision, stating that the issue was debatable and required re-appreciation. Ultimately, the appeal was dismissed, with the Tribunal's order remaining unchanged.

Excess stock found during a surprise visit:
During a surprise visit to the factory, Central Excise Officers found excess stock of lead ingots in both finished and input forms. The appellant explained that the excess stock was borrowed from another entity. The Department imposed duty and penalties, which were partially confirmed by the First Appellate Authority. The Tribunal provided partial relief but sustained the demand for duty, interest, and penalty. The Department argued that the excess stock indicated clandestine removal of goods without duty payment, leading to the liability of the appellant to pay duty with interest and penalty. The Tribunal found that the appellant had removed goods to another entity without duty payment, contravening excise rules and evading duty payment.

Allegations of clandestine removal of goods without payment of duty:
The Tribunal concluded that the appellant had clandestinely removed a significant quantity of lead ingots to another entity without paying duty. This removal was deemed to be in contravention of various excise rules, indicating an intent to evade duty payment. As a result, the Tribunal held the appellant liable to pay duty along with interest under Section 11AB and penalty under Section 11AC. The appellant failed to demonstrate that excise duty had been paid on the goods, further supporting the findings of clandestine removal.

Liability to pay duty, interest, and penalty:
Based on the findings of excess stock, clandestine removal of goods, and evasion of duty payment, the Tribunal upheld the demand for duty, interest, and penalty against the appellant. The Tribunal determined that the appellant had removed goods without payment of duty, leading to the application of Sections 11AB and 11AC for interest and penalty. Despite the appellant's arguments for rectification and explanations regarding manufacturing processes, the Tribunal found no grounds for granting further relief. Consequently, the appeal was dismissed, affirming the liability of the appellant to pay duty, interest, and penalty as per the Tribunal's orders.