2015 (10) TMI 1804 - AT - Central Excise

Clandestine removal of goods - Imposition of interest and penalty - Held that - The proprietor had admitted the clearance of new transformers without payment of duty and in fact he had given three statements in all of which he had not taken the defence that they had also undertaken the activity of repair and supply. The defence has come up only after four years of the investigation commencement. It is seen that detailed investigation has been conducted, statements have been recorded, documents had been recovered to support the observations and the case of the department. I do not find any merit in the appeals filed by the appellants. However there is also a claim that the amount realized by them should be treated as cum-tax amount and I find this is a claim which is justified. - Matter remanded back - Decided partly in favour of assessee.

Summary

Issues:
1. Clandestine removal of transformers
2. Overlapping periods in show-cause notices
3. Central excise duty demands, interest, and penalties
4. Claim for cum-tax treatment of the amount realized

Analysis:
1. The appellant, engaged in manufacturing Electrical Transformers, faced show-cause notices alleging clandestine removal of transformers. The defense claimed that only old repaired transformers were cleared, not new ones. The investigation revealed overlapping periods in the show-cause notices.

2. In Appeal No. E/287/2008, central excise duty of Rs. 14,52,891/- with interest and penalties was demanded, while Appeal No. 288/2008 demanded Rs. 8,13,124/- with interest and penalties imposed.

3. The judge reviewed the records, the impugned orders, and the appellant's appeal memorandum. The appellant argued that periods overlapped and the demand was covered by another notice. However, the judge found that the issue was different, and the demand was confirmed only partially. The appellant failed to provide details on the overlapping periods, amounts, or number of transformers involved.

4. The appellant claimed to have cleared old and repaired transformers to different entities. However, statements from buyers contradicted this claim, stating they purchased new transformers. The appellant's records did not reconcile with the transformers cleared. The appellant failed to provide a reconciliation statement, a defense against buyer statements, or an explanation for not informing the department about their activities.

5. The judge found no merit in the appeals but acknowledged the cum-tax treatment claim as justified. The matter was remanded to the original adjudicating authority for reworking the duty quantum and penalty based on the cum-tax benefit. The operative portion of the order was pronounced on 12.12.2014.