2015 (11) TMI 245 - AT - Central Excise

Duty demand - Cum duty benefit - Shortage of stock - Clandestine removal of goods - Held that - To claim the benefit of Central Excise duty paid in respect of invoice nos.1 to 4, in support of their contention that a part of the goods were cleared on payment of duty cannot be appreciated and accepted inasmuch as the appellant had not produced any evidence in respect of clearance of 20.315 MTs of towers to M/s. U.R. Telecom (P) Ltd. As such, I am of the view that the duty demand in respect of the said quantum of supplies made by the appellant is required to be upheld. However I am of the view that the entire consideration has to be treated as cum duty and the benefit of duty has to be extended to the appellant. As regards confirmation of demand of duty in respect of 8.256 MTs, detected as short stock by the visiting officers, I find that the said visit in the factory was on 09/09/1998. The invoices No.8 to 15 under the cover of which the appellant cleared the goods to M/s. U.R. Telecom Research Pvt. Ltd. are dated 11/08/1998, 12/08/1998 and 13/08/1998. This clearance was during the period of less than one month prior to the visit of the officers. As such, it can be reasonably concluded that such non-duty paid clearances from the factory, contributed to the shortages of the final stock of the appellant. Otherwise also in the absence of any corroborative material showing clearance of such short found final goods to any other person, I am of the view that the confirmation of demand of duty in respect of the same on the findings of clandestine removal is not in accordance with the settled judicial precedent decisions. - Impugned order is set aside - Decided partly in favour of assessee.

Issues:
1. Detection of shortages in the stock of final products during a factory visit.
2. Allegations of clandestine removal of MS towers and structures without payment of duty.
3. Confirmation of duty, interest, and penalties by lower authorities.
4. Dispute regarding duty payment for goods supplied to a specific buyer.
5. Applicability of duty payment for goods cleared to another buyer.
6. Imposition of penalties and interest based on the confirmed duty demands.

Analysis:

Issue 1: Detection of shortages in the stock of final products
During a factory visit, Central Excise officers detected shortages in the stock of the final product, amounting to around 8.256 MTs. This led to further investigations and proceedings against the appellant.

Issue 2: Allegations of clandestine removal of MS towers
Allegations were made regarding the clandestine removal of MS towers to a specific buyer without payment of duty. The appellant was accused of supplying 20.315 MTs of MS towers under certain invoices without duty payment, leading to the initiation of proceedings and imposition of penalties.

Issue 3: Confirmation of duty, interest, and penalties
Lower authorities confirmed the demand of duty amounting to &8377; 1,59,269/- for the MS towers allegedly removed clandestinely, along with the imposition of interest and penalties of identical amounts. This decision was based on the findings of the investigations and the appellant's failure to provide evidence of duty payment for the said clearances.

Issue 4: Dispute regarding duty payment for goods supplied to a specific buyer
The appellant contended that there was a mix-up in the invoices issued to different buyers, leading to confusion in duty payments. They argued that certain goods were supplied to another buyer with duty payment, which should be considered while calculating the duty demand for the disputed supplies. However, the lower authorities rejected this argument, stating that the goods were cleared without duty payment to the specific buyer in question.

Issue 5: Applicability of duty payment for goods cleared to another buyer
The appellate tribunal acknowledged the appellant's contention regarding duty-paid supplies to another buyer but emphasized that the evidence provided by the appellant was insufficient to support their claim. The tribunal directed the authorities to recalculate the duty demand after treating the entire consideration as cum-duty and extending the benefit of duty to the appellant.

Issue 6: Imposition of penalties and interest
The tribunal set aside the confirmation of demand for shortages detected in the stock during the factory visit, citing lack of corroborative material and extending the benefit of doubt to the appellant. Penalties imposed in this regard were also set aside, aligning with the principle of extending the benefit of doubt to the appellant.

In conclusion, the appeal was disposed of with directions to recalculate the duty demand for the disputed supplies and setting aside penalties imposed for shortages detected during the factory visit, based on the principles of duty payment and benefit of doubt to the appellant.

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