2015 (2) TMI 130 - AT - Central Excise

Clandestine removal of goods - Shortage of goods found - benefit of Cenvat credit of duty paid on the inputs. - Held that - For detected the shortage of Sponge Iron and Silico Manganese to the extent 275.290 MT and 353 MT as alleged by the Revenue, the officers were required to physically weigh the entire stock of the Sponge Iron & Scrap etc. which was to the tune of around 1491 MT. Commissioner (Appeals) has observed that during the entire span of 15 hours, the officers could have weight not more than 50-60 MT. As such, he has held that there is no evidence to show that actual physically verification was undertaken. He set aside the charge of shortages and the consequent confirmation of demand. - Apart from the fact that its not possible to weigh such a huge quantum of scrap, for which the revenue has neither produced the inventories nor any other evidence on record, I also note that apart from the alleged shortages, there is factually no evidence on record to show that the said short raw material was used by the appellant in the manufacture of the final product, which was cleared without payment of duty. - Decided against Revenue.

Summary

Issues:
1. Appeal against order passed by Commissioner (Appeals) regarding duty demand and confiscation.
2. Confiscation of seized excess final product and redemption fine.
3. Shortages in raw materials - Sponge Iron and Silico Manganese.
4. Evidence of clandestine removal and duty payment on final product.

Analysis:
1. The appeal was filed by the Revenue against the order passed by the Commissioner (Appeals) regarding the demand of duty and confiscation of seized excess final product. The original adjudicating authority confirmed the duty demand and imposed a penalty, along with confiscation of the seized final product. On appeal, the Commissioner (Appeals) upheld the confiscation but reduced the redemption fine. However, the Commissioner set aside the confirmation of shortages in the raw materials based on the impracticability and lack of evidence supporting the charges of clandestine removal.

2. The Revenue alleged shortages of Sponge Iron and Silico Manganese, but the Commissioner (Appeals) noted that the officers did not physically weigh the entire stock of the raw materials, which was around 1491 MT. The Commissioner found that during the verification process, the officers could only weigh a small fraction of the total stock, raising doubts about the accuracy of the alleged shortages. As a result, the Commissioner set aside the charge of shortages and the consequent demand confirmation.

3. The Tribunal observed that there was no substantial evidence to prove the alleged shortages in the raw materials. The lack of inventories or other corroborating evidence, combined with the absence of proof that the short raw material was actually used in the manufacturing process without duty payment, further weakened the Revenue's case. The Tribunal agreed with the Commissioner (Appeals) that there was no infirmity in the order, ultimately setting it aside.

In conclusion, the Tribunal found in favor of the appellant, setting aside the order of the Commissioner (Appeals) due to the lack of concrete evidence supporting the allegations of shortages and clandestine removal. The decision highlighted the importance of thorough verification processes and the necessity of substantial evidence to establish duty liabilities in such cases.