2015 (11) TMI 1098 - AT - Central Excise

Clandestine removal of goods - Shortage of goods found - Commissioner set aside penalty but confirmed duty - Held that - Impugned order is self-contradictory. The appellate authority has held in favour of the appellant while setting aside the penalty but has upheld the confirmation of demand on the same allegation of clandestine removal. The two portions of the order i.e. upholding the demand on clandestine activity and setting aside the penalty by holding that there is no clandestine activity cannot go hand in hand. - Impugned order set aside - Decided in favour of assessee.

Summary

Issues:
1. Confirmation of demand of duty
2. Imposition of penalty

Confirmation of Demand of Duty:
The appellants, engaged in the manufacture of electric wires and cables, were visited by the Anti-Evasion Wing of Central Excise Commissionerate, where a shortage of 2,271 meters of Aluminium armoured cable was found during stock taking. The duty of &8377; 2,32,270/- involved in the alleged shortage was paid by the appellants after acceptance by the proprietor of the unit. Proceedings were initiated against the appellants, resulting in the confirmation of demand of duty. The Commissioner (Appeals) upheld the confirmation of demand, leading to the present appeal. However, the appellate tribunal found the impugned order to be self-contradictory. While the Commissioner (Appeals) set aside the penalty, he confirmed the demand of duty based on the allegation of clandestine removal. The tribunal held that the two aspects cannot coexist - confirming the demand on clandestine activity while setting aside the penalty due to lack of evidence of clandestine clearance. Consequently, the tribunal set aside the confirmation of demand and allowed the appeal in favor of the appellants.

Imposition of Penalty:
During the penalty imposition, the Commissioner (Appeals) referenced various decisions, including a High Court ruling, stating that a mere shortage of finished goods does not equate to clandestine clearance unless supported by other evidence. The Commissioner (Appeals) noted that since there was no evidence of clandestine clearance of the short found goods, and it was not admitted by the appellant, the imposition of penalty was deemed unsustainable. Despite setting aside the penalty, the Commissioner (Appeals) upheld the demand of duty. The tribunal found this approach contradictory, as it upheld the demand based on clandestine activity while simultaneously setting aside the penalty due to the absence of such activity. Consequently, the tribunal set aside the confirmation of demand and allowed the appeal with consequential relief to the appellants.

This judgment highlights the importance of consistency in decisions and the necessity for evidence to support allegations of clandestine activities for the imposition of penalties. It emphasizes the need for a clear and coherent rationale in legal judgments to ensure fairness and justice in tax matters.